E-Commerce Law Week, Issue 515

President Signs FISA Amendments Act, Ending Years Long Debate

After a final vote in the Senate on July 9, the President on July 10 signed into law the FISA Amendments Act of 2008, which amends the Foreign Intelligence Surveillance Act (FISA) to permit warrantless wiretapping directed at non-U.S. persons "reasonably believed to be located outside the United States," even if the surveillance is effected in, and one or more parties to the communication are located within, the United States.  The law also effectively provides communications providers with retroactive immunity for their alleged cooperation in the Bush Administration's warrantless wiretapping program.   The Senate rejected several amendments that would have excised or limited the retroactive immunity provision.  So, after a few tactical compromises, the Administration has won most of what it had sought despite Democratic control of Congress. 

Plaintiffs Win Pyrrhic Victory in Lawsuit Over Warrantless Wiretapping

A federal court in California has held that FISA "establish[ed] the exclusive means for foreign intelligence surveillance activities to be conducted" in the United States and "limits the power of the executive branch to conduct such activities."  Accordingly, the court found that FISA's rules allowing limited consideration of classified evidence preempt the state secrets privilege in cases challenging the legality of government surveillance.  But, giving the term "hall of mirrors" a whole new meaning, the court also found that the plaintiffs lack standing to invoke FISA's procedures unless they can first show with non-secret evidence that they were subjected to illegal surveillance.  While the court's preemption ruling thus casts doubt on the legality of the government's now-superseded "Terrorist Surveillance Program" (TSP)  of warrantless wiretapping, the court's decision on standing also makes it all but impossible for plaintiffs to have their day in court and prove that the program was unlawful.  Unless the Ninth Circuit overturns this decision, the lawsuit that appeared to have the best chance of obtaining a ruling on the merits of the TSP is probably finished.  

US and EU Agree on Principles for Law Enforcement Data Sharing

In the interest of fighting terrorism and transnational crime, senior officials from the United States and European Union have agreed to a set of 12 principles on privacy and data protection that would govern trans-Atlantic exchanges of information for law enforcement purposes.  These principles, laid out in the Final Report of an EU-US "High Level Contact Group" and delivered to a US-EU summit in June, do not have any immediate practical effect but simply state broad areas of agreement.  The Report also identifies several outstanding issues that would need to be addressed before any concrete international agreement could be reached, including whether "aggrieved data subjects" would be given "the right to redress" before an independent tribunal "regardless of ... nationality or place of residence."  EU and US negotiators must decide how to actually implement these principles -- in a binding international agreement, a non-binding declaration, or something in between.  Other outstanding issues include how to:  ensure "[c]onsistency in private entities’ obligations during data transfers"; establish "equivalent and reciprocal application of privacy and personal data protection law"; prevent "undue impact on relations with third countries"; regulate "information exchanges and privacy and personal data protection"; and address "[i]ssues related to the [differences between the] institutional framework of the EU and US."  Clearly, the statement of principles is only the first step on a very long road ahead.

The Business Traveler's New Nightmare:  Searches of Company Laptops and PDAs at the Border

It’s bad enough traveling these days, with long flight delays, security lines, baggage fees, and cramped seating.  But if you’re a corporate executive carrying sensitive company information, it can be a whole lot worse.  U.S. Customs and Border Protection agents have reportedly been increasing their searches of traveler’s laptops, PDA’s, cellular telephones, and other mobile electronic devices at international airports and other border crossing.  And they don’t need any reason to suspect that a traveler is carrying contraband or doing anything wrong.  They’ve also reportedly been seizing devices for extended periods as well.  This means company trade secrets, proprietary data, and personal information are at risk not just from corporate spies, hackers, and identity thieves, but from government agents, too.  Click here to read more.

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