E-Commerce Law Week, Issue 516

Sixth Circuit Saves A Key Government Investigative Tool, For Now

The en banc Sixth Circuit this month reversed an earlier panel ruling that had found facially unconstitutional those parts of the Stored Communications Act (SCA) that permit a court to order the disclosure of contents of stored emails without a warrant or prior notice to the subscriber.  The panel opinion, in Warshak v. United States, had upheld a preliminary injunction barring the government from using a section 2703(d) order (which requires a showing only of "specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication ... are relevant and material to an ongoing criminal investigation") to seize the contents of emails belonging to any resident within the district court's jurisdiction without providing the subscriber with prior notice.  But the en banc court reversed, finding that the constitutional question was not ripe for adjudication since it was purely speculative that the plaintiff would again be subjected to searches based on 2703(d) orders. 

Court Orders Disclosure of YouTube Viewer Logs in Copyright Suit

Viacom International, Inc. v. YouTube is perhaps best known as a crucial test of the Digital Millennium Copyright Act's liability protections for websites that host user-posted content that infringes copyright.  The plaintiffs -- several media companies and sports organizations -- allege that Google's YouTube service acts as a forum where users post, search for, and view media copyrighted by the plaintiffs, thereby infringing upon their rights of duplication, distribution, and public display and performance.  Seeking evidence to support their claims during the discovery phase of this proceeding, the plaintiffs moved to compel YouTube and Google to "produce certain electronically stored information and documents" -- including the records of YouTube viewers and the source code that drives the Google and YouTube search engines.  The court ruled that Google and YouTube must provide Viacom and other plaintiffs with a complete log of YouTube video viewership -- including the IP addresses and login IDs of the users that watched the videos.  The court also ruled, though, that Google should not be required to provide the plaintiffs with the source code that drives both Google's main search engine and the YouTube video search service. 

Liberty Scores Victory Over UK Surveillance

On July 1, the European Court of Human Rights declared that the United Kingdom's electronic surveillance of "external" communications under the UK's Interception of Communications Act 1985 (replaced in 2000 by the Regulation of Investigatory Powers Act) violated the European Convention for the Protection of Human Rights and Fundamental Freedoms.  The case was brought by one British and two Irish civil liberties groups -- Liberty, British Irish Rights Watch and the Irish Council for Civil Liberties -- which alleged that, between 1990 and 1997, the UK government had been monitoring all communications between Dublin and London from an "Electronic Test Facility" in the UK, including the privileged and confidential communications of the civil liberties groups.  This, they claimed, violated Article 8 section 1 of the European Human Rights Convention, which guarantees "the right to respect for [one's] private and family life, his home and his correspondence."  Ultimately, though, the case turned not on whether the UK had engaged in such widespread surveillance or whether such surveillance was authorized, but on the court's decision that the "minimisation" and "dissemination" procedures employed by the UK government during any such any surveillance were not sufficiently transparent as to be "in accordance with the law."

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