E-Commerce Law Week, Issue 465

Court Says No Reasonable Expectation of Privacy in IP Addresses or Email Addresses

In the first U.S. appellate court decision to address the issue, the Ninth Circuit ruled in United States v. Forrester that monitoring of the "to/from addresses of ... e-mail messages, the IP addresses of ... websites ... visited and the total volume of information sent to or from [an] account" is not a Fourth Amendment search. The court reasoned that this monitoring of such information is analogous to the use of a pen register, which records the numbers dialed on a phone line but not the content of conversations. Citing Smith v. Maryland, 442 U.S. 735 (1979), which held that the use of a pen register is not a Fourth Amendment search, the court found that suspected drug producer Dennis Alba was not entitled to the suppression of evidence obtained through the monitoring, which was conducted without a warrant.  However, the court noted that tracking of other web data, such as URLs, might be considered content monitoring, so companies should still tread carefully when dealing with government requests to install surveillance technology.

FBI Announces Investigation into Possible Criminal Use of "Exigent Letters"

In letters to Speaker of the House Nancy Pelosi and Vice President Dick Cheney in his capacity as President of the Senate, Attorney General Alberto Gonzales and Federal Bureau of Investigation Director Robert Mueller announced that the FBI has taken several steps to reform its use of National Security Letters.  NSLs are 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.  In a March report, the Department of Justice Inspector General found widespread misuse of NSLs within the FBI, and, as we recently reported, the Bureau's own internal audit confirmed those findings.  The report and audit also found misuse of so-called "exigent letters," leading the IG and FBI to launch an investigation.  According to the letters to Pelosi and Cheney, this investigation is looking into whether the misuse of exigent letters resulted in "any criminal conduct, administrative misconduct, or improper performance of official duties."  Should the investigation uncover criminal conduct within the FBI, it could also indicate a heightened risk for companies that turned over records inappropriately.

The New Muscles from Brussels?  Belgian Court Orders ISP to Prevent Piracy. 

The Belgian Court of First Instance in Brussels ruled late last month that a local Internet service provider must take certain proactive measures to block or filter peer-to-peer downloading of pirated audio and video files.  The court's ruling was based on the European Union's Information Society Directive, which requires member states to "ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right."  The ISP must begin using technology to prevent copyright infringement within six months of the ruling, or face fines of €2,500 a day for non-compliance.  While recording and movie industry groups have cheered the decision, it could greatly increase in liability for Internet service providers -- especially if other courts follow Belgium's lead.

Number of Fines for French Data Protection Violations on the Increase

More companies that violate French data protection law can expect to face fines from the competent authority, the Commission Nationale de l'Informatique et des Libertés (CNIL).  This is the upshot of a recent CNIL report, which reveals that a financial sanction power created by a 2004 amendment to French privacy law -- but not used by the CNIL until 2006 -- has netted the data protection authority 16 fines totaling €168,300 over the past year.  Although the fines were relatively small -- with the largest weighing in at a whopping €50,000 -- if the dollar keeps sinking in value, €50,000 might one day get a U.S.-based company's attention.

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