E-Commerce Law Week, Issue 512

New FISA Compromise Would Effectively Give Telecoms Retroactive Immunity

An agreement between congressional Democrats and the Bush Administration on amendments to the Foreign Intelligence Surveillance Act (FISA) could finally allow telecommunications companies to put an end to lawsuits alleging that they cooperated in the government's illegal warrantless wiretapping program.  Under compromise legislation that passed the House on June 20, any civil action alleging that an "electronic communications service provider" provided such cooperation would have to be dismissed if the Attorney General certifies that the provider received a "written request ... from the Attorney General or the head of an element of the intelligence community ... indicating that the [requested surveillance] was ... authorized by the President ... and ... determined to be lawful" and a district court determines that this certification is "supported by substantial evidence."  Given the Senate Intelligence Committee's assertion that the government did in fact use such "written requests" when seeking providers' cooperation, the Attorney General's certification should be enough to get telecoms off the hook.  Substantively, the bill would permit the Attorney General and Director of National Intelligence to authorize foreign intelligence surveillance "directed at" a person "reasonably believed" to be outside the United States without obtaining a FISA order, even if the surveillance were effected in the United States and one or more parties to the communication were in the United States.  But the bill would require the FISA court to approve "targeting" and "minimization" procedures in advance.  It would also prohibit using this warrantless surveillance authority to intentionally target U.S. persons.  The Senate voted to limit debate on the legislation, but a final vote on the bill might still get delayed until after the July 4 recess.

Tenth Circuit Rules That Use of Marks on Parody Site Is Not Trademark Infringement

Ernest Hemingway called parody "the last refuge of the frustrated author."  In Utah Lighthouse Ministry v. Foundation for Apologetic Information and Research (FAIR), the Tenth Circuit ruled that parody provided refuge of a different type, shielding a website from liability for trademark infringement and cybersquatting.  The court found that "[t]he fact that the ... website [was] a successful parody weigh[ed] heavily against [the] finding of likelihood of confusion" required to show trademark infringement, and helped establish that the defendant's use of the plaintiff's trademark in its domain names was a fair use.  The court also ruled that the plaintiff's trademark was not protectable and that the defendant had not used the mark "in connection with any goods or services," as required to state a trademark infringement claim under the Lanham Act.

Alaska Governor Signs Breach Notification Law

Data breach notification is coming to the Land of the Midnight Sun.  On June 18, Alaska governor Sarah Palin signed a bill into law that will require any person or business that owns or licenses the personal information of a state resident to notify the resident if this information is breached, subject to a risk of harm threshold.  The law's notification provisions and definitions are fairly standard.  Violations are treated as an unfair or deceptive act or practice, and violators are "liable to the state for a civil penalty of up to $500 for each state resident who was not notified" (capped at a "total civil penalty" of $50,000).  Moreover, Alaska residents injured by a violation are allowed to seek actual damages of up to $500 from the information collector that suffered the breach. The Alaska law also states that any business that disposes of records containing personal information and fails to "take all reasonable measures necessary to protect against unauthorized access to or use of the records" may be liable to the state for civil penalties of up to $3,000 and may be subject to suits by harmed individuals.  The law will take effect on July 1, 2009.

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