E-Commerce Law Week, Issue 461

Sixth Circuit Enjoins Government from Obtaining Emails Without Search Warrant or Prior Notice to Subscriber

In a decision with broad implications for communications providers and law enforcement, the Sixth Circuit on June 18 ruled that sections 2703(b)(1)(B)(ii), 2703(d), and 2705 of the Stored Communications Act -- which collectively permit a court to order the disclosure of the contents of stored emails without a warrant based on probable cause or prior notice to the subscriber -- are facially unconstitutional.  In Warshak v. United States, the court held that emailers generally "maintain a reasonable expectation of privacy in the content of their e-mails" which cannot be disturbed absent "a warrant, the consent of one of the parties to the conversation, or compelled disclosure accompanied by an opportunity for judicial review."  The court also upheld the lower court's preliminary injunction, which barred the government from using a so-called 2703(d) order to seize the contents of emails belonging to "any resident of the Southern District of Ohio" from an ISP "without providing the relevant account holder or subscriber prior notice and an opportunity to be heard."  However, the court added that the government could avoid this notice requirement by "showing that the account holder maintained no expectation of privacy with respect to the ISP."  This ruling, if upheld, would make it more difficult for the government to obtain the content of emails stored for longer than 180 days.

CDA Immunity Does Not Shield Employer From Liability for Employees' Online Activity, Court Rules

As "provider[s]" of an "interactive computer service," websites and ISPs can generally claim immunity under section 230(c)(1) of the Communications Decency Act (CDA) from suits based on content provided by a third party.  Despite the statute's apparently broad scope, however, a federal court in Tennessee recently held that the CDA does not immunize a company against a former employee's claim that the company had created a "hostile work environment," in violation of Title VII of the Civil Rights Act, by permitting her coworkers to view pornography on a workplace computer.  In Avery v. Idleaire Technologies Corp., the defendant company moved for summary judgment, contending that section 230 "by its own terms ... prohibits any federal or state claim that seeks to hold an employer that provides computer systems to its employees for use on the job from being held liable based upon the content of the information ‘provided by another information content provider.'"  The court rejected the company's argument, noting only that it was "not aware of any federal case in the country that has applied this Act in such a manner" and pointing out that the company had "cite[d] no authority" supporting its position.   In fact, at least one state court has gone the other way.  Regardless, the Avery decision is another instance of what seems to be a nascent trend towards narrower interpretation of section 230's protections.

Will FBI's Audit Of NSL Use Mean Trouble For Communications Carriers?

According to news reports, an internal FBI audit has revealed that the misuse of National Security Letters (NSLs) was more widespread than suggested in a March report by the Department of Justice Inspector General ("IG").  The report found that the FBI repeatedly violated the law, Attorney General Guidelines, and internal FBI procedures in its use of NSLs -- essentially administrative subpoenas that the FBI can use, without having to go to a court or a grand jury, to obtain a wide variety of customer records from telecoms, Internet service providers, financial institutions, and credit agencies.  Although not yet complete, the FBI's recent audit, which involved a larger sample than the IG's investigation, has reportedly found that the majority of the violations were rooted not in FBI agents' errors, but in telecoms'  and email providers’ provision of more information than requested in the NSLs, or than the FBI was authorized to obtain.  If confirmed in the final audit, this finding could mean legal trouble for some communications companies, which might face suits for alleged violations of the Electronic Communications Privacy Act and possibly other laws.  Given the renewed scrutiny that this new audit will bring, companies that regularly receive NSLs or other government requests for information should review their internal practices and procedures to ensure that their responses to the government are appropriate and lawful.

FCC Extends Comment Deadlines on CALEA Petition

As we reported last month, on May 15, 2007 -- just one day after the deadline for broadband Internet access and interconnected VoIP providers to comply with the Communications Assistance for Law Enforcement Act ("CALEA") -- the Department of Justice filed a petition with the Federal Communications Commission alleging certain deficiencies in the recently published CALEA standard J-STD-025-B.  At the request of CTIA and the Telecommunications Industry Association, the FCC has now extended the comment period to July 25 for initial comments and September 25 for reply comments.

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