E-Commerce Law Week, Issue 517

U.S. Warns Travelers that Foreign Governments May Spy on Their Mobile Devices 

The U.S. Department of Homeland Security (DHS) has warned U.S. citizens traveling abroad that information they carry on laptops, cell phones, and PDAs could be secretly intercepted by foreign governments.  DHS reports that these governments "routinely target" electronic devices and media, noting that "corporate and government leaders are most at risk because of the potentially useful information that they carry."  The warning provides advice on security precautions travelers can take to minimize the risk to sensitive information, including the use of encryption.  The release of the warning comes as U.S. officials are reportedly weighing the benefits of advising travelers to China of the heightened risk that their mobile devices may be subject to secret searches against the potential costs of offending an essential economic partner.   (Senator Sam Brownback (R-CO) felt no such ambivalence, warning this week that Chinese authorities have ordered hotels to spy on their guests' Internet activities.)  The DHS advice, while well taken, has a tinge of irony, since U.S. border and customs agents (a part of DHS) have also been examining incoming travelers' mobile devices and copying information, as we have recently reported.

No Trademark Liability for eBay Over Counterfeit "Tiffany" Items

A federal court in New York ruled earlier this month that eBay was not contributorily liable for its members' use of the "Tiffany" trademark to describe counterfeit jewelry sold through eBay's online auction service.  While eBay had "general knowledge" of infringement of Tiffany's mark, the court found that Tiffany had failed to show that eBay continued to supply its service to persons whom it "knew or had reason to know" had engaged in "specific instances of actual infringement."  The court determined that "eBay responded appropriately to notice of specific infringing items, and ... evidence of eBay’s general knowledge of infringement [was] insufficient to impute knowledge to eBay of specific infringing listings."  The court also found that eBay's use of the "Tiffany" mark in Internet advertising for its auctions -- including in ads on Yahoo! and Google that were triggered by searches for the "Tiffany" mark -- was a nominative fair use, and therefore was not directly infringing.  For similar reasons, the court also rejected Tiffany's claims for unfair competition, false advertising, and trademark dilution.  This ruling marks a reversal of fortune for eBay, which, as we previously reported, was held liable by a French court last month for brokering unauthorized auctions of counterfeit goods bearing the marks of luxury goods consortium LVMH. 

Court Rules that Vague Allegation of Authorship Doesn't Pierce Website's Immunity Shield

Many courts have ruled that section 230(c)(1) of the Communications Decency Act (CDA) provides websites with broad immunity for content posted by third parties, but does not shield them from liability if they are responsible, in whole or in part, for the creation or development of the content.  However, in Nemet Chevrolet, Ltd. V. Consumeraffairs.com, Inc., a federal district court in Virginia recently found that, without more, an auto dealer's "bald allegations" that a website "participated in the preparation and publication of a ... defamatory ... article" posted by a third party could not circumvent the website's section 230 immunity.

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