E-Commerce Law Week, Issue 475

Court Finds Secret Surveillance Downright Unpatriotic

Maybe it's all in the name.  First Bill Belichick had to apologize for the New England Patriots' spying scandal.  Then a court found the Foreign Intelligence Surveillance Act (FISA), as amended by the USA PATRIOT Act, unconstitutional.  It's enough to make Nathan Hale, the original Patriot spy, roll over in his unmarked grave.   Judge Ann Aiken, a federal judge in Oregon, ruled in Mayfield v. United States that the Patriot Act's changes to FISA violate the Fourth Amendment by permitting the government to wiretap a suspect or search his property to gather evidence for a criminal prosecution, without having to establish probable cause to believe a crime is being committed.  The Patriot Act changed FISA so that the government can obtain a wiretap or search order by certifying (among other things) that collecting intelligence is "a significant purpose" of the surveillance rather than the "primary" purpose.  This means, in essence, that the government can use FISA, instead of Title III or criminal search warrants, even where its main purpose is to gather evidence for a criminal prosecution.  That change was one of the least politically controversial changes worked by the Patriot Act, and was upheld by the Foreign Intelligence Surveillance Court of Review in 2002.  Still, Judge Aiken managed to muster Hale-worth oratory in condemning the change as violating "bedrock principles" of the Constitution and signaling a momentous shift from a Nation based on the "rule of law" to one "based on extra-constitutional authority."  Despite the ringing rhetoric, it's doubtful that the court's ruling -- a declaratory judgment without any accompanying  injunction -- will have any immediate practical effect on the government or on the recipients of FISA orders.  If the government appeals, though, this case could become the vehicle by which the Supreme Court finally gets to opine on FISA.  Whether to appeal therefore may not be as easy a decision for the government as one might think.

ACLU Seeks to Spread Sunshine on Secret Surveillance . . .

. . . but the government is not putting on a happy face about it.  As we previously reported, the American Civil Liberties Union recently asked the Foreign Intelligence Surveillance Court (FISC) to publicly release orders it issued earlier this year concerning the government's wiretapping authority under FISA.  Specifically, the ACLU is seeking release of the order that apparently enabled the government to continue, under the rubric of FISA, its previous warrantless wiretapping program.  It is also seeking the order that the government has said resulted in requiring FISC approval to wiretap foreign-to-foreign communications that cross through a switch in the United States.  The latter order was cited as the reason for the Protect America Act (PAA), a temporary amendment to FISA which eliminates the requirement of a court order not just for foreign-to-foreign communications, but also for communications between the United States and abroad, as long as the surveillance is "directed at" a person reasonably believed to be outside the United States.  The government responded to the ACLU's motion by arguing that the group was in no position to request the orders from the FISC, and that, in any case, no portion of the orders could be disclosed without "harming national security."  Last month, the ACLU replied, countering that FISC court rules "appear to contemplate" motions for disclosure lodged by members of the public, and arguing that the government's contention that the orders must remain secret in their entirety should be "view[ed] with deep skepticism" given officials' repeated public discussion of the orders.  While this dispute might seem like a minor procedural skirmish, in fact it could have a significant impact on whether the FISC continues to operate in total secrecy, shielding even its general legal analyses from public -- and congressional -- scrutiny.  The FISC's decision could also have a big impact on the congressional debate over whether to extend the PAA amendment to FISA, since the Administration thus far has been reluctant to provide information about the orders to Congress even while asking for far-reaching amendments to the law.

EU Court Upholds Competition Ruling Against Microsoft

Microsoft has taken its fair share of lumps from European regulators in recent years.  As we previously reported, the European Commission ruled in 2004 that Microsoft had violated Article 82 of the EC treaty by failing to disclose the technical specifications of its server communications protocols and bundling Windows Media Player (WMP) with its Windows operating system.  The Commission ordered Microsoft to supply competitors with the server specifications and offer a version of Windows that lacked WMP -- and hit the company with a fine of €497 million.  Last month, the Court of First Instance (the EU's second highest appellate court) for the most part rejected Microsoft's appeal of the EC's ruling, affirming that Microsoft had abused its dominant market position in PC and work group server operating systems, and upholding the fine.  The court's ruling, which has already drawn criticism from U.S. antitrust officials, suggests that the EU will maintain an aggressive stance on competition issues, even if it means putting a company's intellectual property at risk.

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