E-Commerce Law Week, Issue 495

Liberté, Egalité, Cybercriminalité

Ever since the World Wide Web overtook the Minitel as the principal vehicle for le commerce électronique, France has struggled to regain a leadership role in shaping the rules governing the Internet.  One key area of focus has been the regulation of website content.  But the iron fist that France has shown in previous cases involving the sale of Nazi paraphernalia on Yahoo! or Google's sale of trademarked search terms has been replaced by the velvet glove of a proposed "partnership" with ISPs to fight cybercrime.  But this velvet glove may not be as soft as it seems, given the scope of France's definition of cybercrime and what some of its proposals portend about the future of free speech, privacy, and anonymity on the Internet.  The latest French thinking on these issues was revealed earlier this month by Interior Minister Michèle Alliot-Marie's announcement of a package of proposals for fighting cybercrime.  The proposals include:  developing a "charter of best practices" that would govern cooperation between government and ISPs and allow for "the blocking of illegal sites";  giving the French public access to web-based tools for reporting illegal websites; investigating "technical and legal means" for facilitating the identification of Internet users, such as geolocation tools; and creating a law enforcement body dedicated to "Internet scams" with an increase in the number of personnel "trained in the fight against cybercrime."  The Minister also announced that a National Commission comprising government officials, telecommunications operators, and user groups is preparing recommendations for using "trust marks" and other tools to ensure the protection of consumers and children online.

Massachusetts Court Rules that Misappropriation of Computer Files Can Support Conversion Claim

Several courts -- including the Ninth Circuit and the New York State Court of Appeals -- have ruled that the common law tort of conversion (basically, the unjustified interference with someone's possession of his personal property) reaches electronic, as well as physical, property.  But, as two recent decisions from Massachusetts demonstrate, courts are far from agreement on the application of conversion to the electronic realm -- even in the same state.  As we previously reported, in December a federal court ruled in In Re TJX Companies Retail Security Breach Litigation that a conversion claim "based on ... intangible property ... likely is not cognizable in Massachusetts."  For that reason, the court rejected plaintiff banks' claim that the defendants had "converted" intangible cardholder information by "storing" and "failing to safeguard" this data.  But it turns out that just twelve days earlier, a Massachusetts state court had reached the opposite conclusion, finding that "[i]f paper documents can be converted, as they no doubt can, ... no reason appears that computer files cannot."  While the common law is still in flux, more courts may begin to move toward the view that electronic property can be the basis for a conversion claim and that distinctions between tangible and intangible property make little sense in the Information Age.

FCC Sets Deadline for VoIP Number Portability, Seeks Comments on Other Regulatory Proposals

Effective March 24, 2008, all interconnected voice-over-IP providers -- and telecommunications carriers that obtain numbers for such providers -- will have to "facilitate an end-user customer’s valid number portability request."  The Federal Communications Commission formalized its adoption of this number portability requirement in a final rule published in the February 21 Federal Register.  The FCC also published a notice of proposed rulemaking seeking comments on:  the process for validating number ports; "whether it should require interconnected VoIP providers to comply with N11 code assignments" (i.e., three-digit dialing codes for "essential services," such as 911 and 411); and its "tentative conclusion" that wireline-to-wireline and "simple" intermodal ports should be completed within 48 hours.  Initial comments are due by March 24, and reply comments are due by April 21.  The FCC has extended a number of traditional telephone regulations to interconnected VoIP over the past several years -- including disability, Universal Service Fund, and E911 requirements, as well as the duty to facilitate government surveillance authorized under the Communications Assistance for Law Enforcement Act.  All of these actions suggest that the Commission will continue to extend the reach of telecom regulations to cover interconnected VoIP providers in the months ahead.

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