E-Commerce Law Week, Issue 537

Second Circuit Finds NSL Gag Orders Unconstitutional

On December 15, the Second Circuit enjoined the government from enforcing "gag" orders served on recipients of National Security Letters "in the absence of Government-initiated judicial review" of the propriety of maintaining such orders.  These gag orders prohibit electronic communications service providers from disclosing that they have received NSLs for customer information.  The Second Circuit ruled that the gag orders are "unconstitutional to the extent that they impose a nondisclosure requirement without placing on the Government the burden of initiating judicial review of that requirement."  It also held unconstitutional a requirement that courts treat as "conclusive" government certifications that disclosure would result in harm to national security or diplomatic relations.

French Funny Man Makes YouTube the Butt of His Copyright

French comedian Jean-Yves "Lafesse" (in English, "the Butt") appears intent on teaching websites that hosting user-submitted videos ripped from his DVDs is no laughing matter.  As we previously reported, the High Court of First Instance of Paris ruled last year that social networking site MySpace was liable for infringing videos of Lafesse posted by a MySpace user.  Last month, the same court returned a similar ruling against YouTube, holding it liable for its failure to remove videos of Lafesse that YouTube users had posted to the video-sharing website.  The court ruled that YouTube had failed to promptly remove the videos despite knowledge that they were infringing, and therefore ordered the company to pay Lafesse and his producers €84,500.

Court Rejects Effort to Require Website to Identify Anonymous Commenters

A recent ruling could help clarify when an Internet service provider may resist complying with a subpoena for the identity of anonymous individuals who have posted content to the provider's servers.  In Enterline v. Pocono Medical Center, a federal court in Pennsylvania ruled that a newspaper had standing to challenge a subpoena for the identities of anonymous individuals who posted comments to the newspaper's website.  It also ruled that the First Amendment rights of the commentators barred the court from compelling the newspaper to comply with the subpoena.

Sony Music Pays $1 Million to Settle FTC's COPPA Complaint

Sony BMG Music Entertainment has agreed to pay $1 million to settle Federal Trade Commission charges that it violated the Children's Online Privacy Protection Act (COPPA).  According to the FTC's complaint, Sony Music's promotional websites knowingly collected and maintained information about users under the age of 13 without implementing COPPA's notice and consent requirements for such information.  It also claimed that Sony Music failed to abide by its own privacy policy, which promised to bar visitors who indicated that they were under 13 from registering to use certain website features.  Because children who indicated they were under 13 were in fact allowed to register, the Commission alleged that the privacy policy violated the "deceptive acts or practices" prong of the FTC Act.

Questions and comments about E-Commerce Law Week are always welcome.  Please send your feedback to Sally Albertazzie.