E-Commerce Law Week, Issue 470

Secret Surveillance Court May Lift the Veil on Wiretapping Orders

The Foreign Intelligence Surveillance Court (FISC) two weeks ago signaled that it is considering publicly releasing orders it issued earlier this year concerning the government's wiretapping authority under the Foreign Intelligence Surveillance Act (FISA).  The FISC has ordered the government to respond by August 31 to a motion filed by the American Civil Liberties Union asking for public release of (1) the orders issued on January 10 which apparently enabled the government to continue its previous warrantless wiretapping program under the rubric of FISA; (2) any subsequent orders extending, modifying, or vacating the January 10 orders; and (3) any legal briefs submitted by the government in connection with such orders.  If the FISC does end up releasing some portion of the orders and briefs, the FISC's decision and rationale could significantly influence Congress's reconsideration of the temporary legislation passed earlier this month that significantly expanded the government's ability to wiretap Americans' international communications without a court order.

FISA Amendment Raises European Conflict of Laws Concerns

Meanwhile, the breadth of the FISA amendment is now creating concerns about possible conflicts with European privacy law and policy.  Lawmakers at the European Parliament have stated that the new law violates the privacy rights of European citizens whose communications may now be intercepted without judicial warrant, highlighting a difficult conflicts-of-law problem for companies with operations in both Europe and the United States.  As SWIFT recently discovered, it might not be possible for a company to respond to a U.S. request for information without also violating strict European Union privacy or data protection laws -- leaving the company between a rock and a hard place.  Concerns in Europe regarding the scope of U.S. wiretapping have already led some governments and others in Europe to distrust networks that use U.S. facilities.  Multinational companies wishing to navigate these twin hazards safely would be well advised to give careful thought as to how to arrange their affairs so as to limit their exposure.

American Airlines Seeks to Ground Google's Use of Trademarked Search Terms

Google's sale of trademarked search terms, which has already weathered several legal challenges, faces a new assault by a high-profile plaintiff.  In a complaint filed earlier this month in federal court in Texas, American Airlines alleges that Google has infringed American's trademarks by selling airline industry competitors the right to display ads alongside web searches for terms such as "american airlines" and "aa.com."  The airline also claims that the text of the triggered ads sometimes displays American's trademarks, and that the "Sponsored Links" heading that Google uses to set off such ads from "natural" search results incorrectly leads consumers to believe that American Airlines sponsored such ads.  In addition to direct, contributory, and vicarious infringement, American claims false representation and dilution under the Lanham Act, several violations of Texas law, and tortious interference with contract.  The airline has asked the court to enjoin Google from the sale or display of ads triggered by searches for American's trademarks, to direct Google to post "corrective advertising" on its website, and to award American restitution of all profits earned through the sale of its trademarks, plus treble damages and attorney fees.

On the Internet, No One Knows You’re an Earl (Unless You Change the Liability Rules)

A Report on personal Internet security published recently by the Science and Technology Committee of the UK House of Lords criticizes the UK government’s current “Wild West” approach of leaving Internet security up to the individual, and calls for increased policing of the Internet by ISPs in order to curb e-crime.  The Report suggests that the Internet is “now increasingly the playground of criminals,” and follows an October 2006 UK government study which found that 21% of Britons feel most at risk from Internet crime -- second only to bank card fraud (27%).  Although the Lords have identified a real problem that troubles many of us, their proposed solutions include various elements that should be troubling to industry.  The Home Office is in the process of reviewing the Report and has indicated that it will respond shortly.  If the UK government were to adopt legislation enacting key points of the Lords’ recommendations on liability, the impact on the technology industry in the UK could be significant.  Some technology companies may simply choose to do business outside the UK, and investment in this important growth area of the UK economy could easily dry up.  We suspect that the UK government will keep these concerns in mind, and will do a more nuanced job than the Lords of balancing the interests of ISPs, software and hardware vendors, consumer groups and law enforcement agencies – but with some shift of liability to industry, which may be an emerging global trend.

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