E-Commerce Law Week, Issue 477

Canada Puts Shoe On Other Foot, Asserting Right to Data Stored in U.S.

A federal court in Canada last month held that two eBay affiliates in Canada could be required to produce information stored by their parent eBay Inc. in the United States.  Crucial to the court's finding was the fact that the eBay affiliates had the ability to access, and had in fact used, the information being sought in Canada to further their Canadian marketing activities.  The decision illustrates that national borders will not necessarily impede government authorities from obtaining information stored in another country.  As world trade has become more integrated, and as foreign courts begin to assert a similar extraterritorial reach for their country's laws, it will be interesting to see how such courts will handle a case where U.S. law prohibits disclosure.  Would a foreign court excuse a party from production?  Or would it act as some U.S. courts have done and order production anyway?  These issues are likely to become more pronounced as more nations (such as those in the EU) enact comprehensive privacy laws and assert extraterritorial jurisdiction.

Canadian Province Protects Right to Surf the Web

The loonie and the greenback may be on par for the first time in decades, but that doesn't mean Canadian workplace rules match American ones.  Take the issue of company monitoring of employees' computer use, for example.  In the United States, monitoring is becoming a routine corporate practice.  But in Canada such monitoring can carry legal risks, running afoul of employee privacy rights.  In a case involving a University of British Columbia employee who was fired for excessive personal use of the Internet on the job, an adjudicator with BC's Office of the Information & Privacy Commissioner found that the University had violated BC's Freedom of Information and Protection of Privacy Act (FIPPA) by using log reports and spyware to track his Internet use when "less intrusive" means could have addressed the university's concerns (FIPPA section 26), and by failing to notify the employee before beginning monitoring (FIPPA section 27).  While the FIPPA applies only to "public bodies," BC's Personal Information Protection Act covers most organizations doing business in the province.  Since both statutes contain similar requirements, the lessons learned by the University should apply with equal force in the corporate world.  The adjudicator's decision highlights some of these dangers.

When It Comes to Internet Gambling, Countries Like To Hedge Their Bets

During its long battle with Antigua and Barbuda before the World Trade Organization, the United States has repeatedly argued that it never agreed to allow foreign gambling websites access to its markets, despite its commitments under the General Agreement on Trade in Services (GATS).  But, after several WTO rulings that the GATS requires the United States to give foreign websites the same access to Internet gambling on horse races enjoyed by domestic operations, the United States has changed its tune.  The United States now concedes that it opened its market to "recreational services" -- including online gambling -- when it signed the GATS, but contends that the inclusion of Internet gambling services was a drafting "oversight," and has petitioned to "clarify" its GATS obligations accordingly.  However, under the terms of the GATS, the United States must compensate any WTO member that demonstrates that it has been harmed by such a change to its commitments.  Canada, the European Union, India, Japan, Costa Rica, and Macao have joined Antigua and Barbuda in requesting compensation.  So what once looked like a mere nuisance to the United States could become a real problem.

Questions and comments about E-Commerce Law Week are always welcome.  Please send your feedback to Sally Albertazzie.