E-Commerce Law Week, Issue 485

On the Internet, Everyone Knows You're A Dog (If They Can Subpoena Your ISP For Your Identity)

The famous New Yorker cartoon will have to be revised if plaintiffs are able to file "John Doe" suits against unknown parties and then seek third-party subpoenas against Internet service providers to obtain the identity of alleged defamers, illegal file-sharers, and others.  Courts continue to wrestle with the question of how best to balance plaintiffs' legitimate need for evidence in civil litigation against Internet users' constitutional interest in maintaining anonymity.  In Mobilisa, Inc. v. Doe, the Arizona Court of Appeals found that a plaintiff seeking to unmask a user of an Internet email service must show not only that its case would survive a motion for summary judgment (as required by the Delaware Supreme Court's seminal decision in Doe v. Cahill, which we covered previously), but also that its interest in identifying the user outweighs the user's interest in remaining anonymous.  Meanwhile, two federal courts recently held -- in Arista Records LLC v. Doe and Warner Bros. Records Inc. v. Doe -- that plaintiffs could subpoena universities for the identity of users of their Internet services because the plaintiffs had shown that the information was necessary to their cases.  But both courts provided that the university-ISPs and the Doe defendants should have the opportunity to move to quash the subpoenas.  If that happens, those courts will also have to consider what standard to apply to requests to identify Internet users, thus continuing the ongoing debate among courts on this issue.

Disclosure of FISA Lobbying Documents Could Turn Up Heat In Telecom Immunity Debate

A federal court in California ruled late last month that the Office of the Director of National Intelligence (ODNI) must provide the Electronic Frontier Foundation with ODNI documents concerning discussions with telecommunications company representatives over proposed amendments to the Foreign Intelligence Surveillance Act (FISA) no later than December 10, 2007.  In a Freedom of Information Act (FOIA) request, EFF had asked for access to all ODNI records from April to August 2007 involving FISA amendment discussions between ODNI officials, representatives of telecommunications companies, and the offices of members of Congress.  Although the ODNI agreed to "expedited processing" of this request, it did not respond within the 20-day time frame laid out in the FOIA, prompting EFF to seek a preliminary injunction.  The court granted the injunction, finding that EFF would likely succeed on the merits and that it would likely suffer "irreparable injury" if it did not receive the information immediately, since Congress is in the midst of debating whether to retroactively immunize telecoms that cooperated with the government's warrantless surveillance program.

Visa Settles with TJX and Fifth Third Bank over Data Breach

Litigation stemming from last winter's data breach at retail conglomerate TJX continues to wind down.  On November 30, TJX announced that it and Fifth Third Bank (which accepted card payments made to TJX) had reached a settlement with Visa U.S.A., Inc., and Visa Inc. resolving claims concerning VISA account data compromised in the breach.  This agreement comes on the heels of a ruling by a federal court in Massachusetts, which denied issuing banks' requests to certify their suits against TJX as a class action.  The consumer class action against TJX also appears to be nearing settlement, with the parties currently in mediation to hammer out any points of contention not resolved by a settlement agreement proposed this September.  Should both the Visa and consumer settlements go through, only the claims of banks that issued compromised cards that do not bear a Visa logo would remain unresolved.  As the court predicted in its ruling denying class certification, these last remaining claims were transferred to state court this week.  So, while investigations into the TJX breach by state attorneys general and the Federal Trade Commission continue, the high stakes litigation appears to be nearing an end.  But the costs to TJX -- from the settlements, attorneys' fees, remaining damage claims, and loss of customer trust -- will haunt the company for some time.

Steptoe & Johnson LLP presents:  "Product Recalls:  Effectively Managing the Process"

With high-profile recalls and product safety in the news, Steptoe & Johnson LLP invites you to a webinar designed to help companies: (1) Identify product hazards; (2) negotiate a corrective action plan with the CPSC; (3) maximize recall effectiveness; and (4) minimize the threat of follow-on consumer litigation. On January 10, 2008, at 1:00 p.m. EST, Steptoe partners Tom Barba, Sandy Chamblee, and Jennifer Quinn-Barabanov, along with Elisha Lawrence, General Counsel, Alltrade Tools, will discuss the steps companies should take to address and effectively manage product safety concerns.  Registration is free, but is on a first-come, first-served basis.

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