E-Commerce Law Week, Issue 468

Congress Says Attorney General Can't Be Trusted, Expands His Authority To Engage in Warrantless Wiretapping.  Huh?

Who would have thought it.  In recent weeks the Attorney General has been under fire from members of Congress -- mostly Democrats, but also some Republicans -- for allegedly misleading Congress about the NSA's warrantless wiretapping program, his knowledge of the FBI's abuse of National Security Letters, and his involvement in the firing of U.S. Attorneys.  Nevertheless, Congress saw fit to amend the Foreign Intelligence Surveillance Act (FISA) in a way that greatly expands the power of the self-same Attorney General -- along with the Director of National Intelligence -- to wiretap the communications of Americans within the United States without a warrant.  The law, signed by the President on August 5, actually expands the warrantless wiretapping program that the government terminated in January, since the new law is not limited to suspected terrorists.  The only limitation of this new authority is that the Attorney General and DNI must certify that the surveillance is "directed at" a person "reasonably believed" to be outside the United States and that a "significant purpose" of the surveillance is to collect "foreign intelligence."  If so, then no court order is needed, even if the other party to the conversation is a U.S. citizen located in the United States and the wiretap takes place in the United States.  Congress did reject a provision that would have retroactively immunized communications providers from any legal liability for assistance they provided to the government after September 11, 2001 (though the law does provide immunity for any assistance going forward).  Also, the new authority has a six-month sunset, and many Democrats are already calling for legislative changes.  But one thing should be clear nearly six years since the enactment of the USA PATRIOT Act -- once new powers have been granted to the government, Congress is unlikely to pull them back substantially even with the help of an automatic sunset provision.  As Tevye might have put it: "Sunset, sunrise."

Who Knows What Evil Lurks in the Hearts of Disloyal Employees?

The Shadow may know, but some courts couldn't care less.  Employers increasingly use the Computer Fraud and Abuse Act (CFAA) to seek redress against former employees that pilfered company data.  Courts have split, however, on whether a former employee's improper use of company information is enough to make out a CFAA claim.  As we have previously reported, several courts have held that an employee who accessed information for an improper purpose -- such as his personal benefit or that of his employer's competitor -- acted "without authorization" or "exceed[ed his] authorized access" within the meaning of the Act.  But a few courts have gone the other way.  Most recently, a federal court in Pennsylvania ruled in Brett Senior & Associates v. Fitzgerald that a former employee's allegedly unauthorized use of client files did not establish that the employee exceeded his authorized access when he took the files.

Tech Group Challenges Copyright Notices As Unfair And Deceptive

The Computer and Communications Industry Association (CCIA) -- which counts Google, Yahoo!, Oracle, and Microsoft among its members -- has filed a complaint with the Federal Trade Commission alleging that various content providers are committing "unfair or deceptive acts or practices" by "misrepresenting consumer rights under copyright law" in the copyright warnings that appear at the beginning of sports broadcasts, DVDs, and books.  The CCIA has asked the FTC to investigate right-holder corporations' use of copyright warnings and to order offending corporations to cease their alleged misrepresentations and pay for advertising and education programs to correct the public's "misconceptions" about copyright.  We wonder how the FBI -- which lets film music, and software companies display the Bureau's name and seal in their warnings -- will respond to the implicit assertion that it is fostering unfair and deceptive practices.

FCC Agrees on Rules for Divvying Up Airwaves

The Federal Communications Commission last month announced a revised plan for the auction of the 700 MHz band spectrum -- perhaps the best spectrum to become available for wireless services in a long time.  The spectrum will be available for use by wireless services after February 17, 2009, when its current occupants, television broadcasters, will be required to abandon it as part of the transition to digital television. The rules governing this valuable spectrum were the focus of intense lobbying from all sides, with Google and others pressing the FCC to impose open access and wholesale resale requirements on the auction, and startup Frontline Wireless pushing for many of the same provisions, as well as for cooperation between private and public safety licensees in rolling out a nationwide public safety broadband network.

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