E-Commerce Law Week, Issue 551

Legislation Would Create Federal Cybersecurity Requirements for Private Sector

Senators John D. Rockefeller (D-WV) and Olympia J. Snowe (R-ME) have introduced legislation (S. 773 (Staff Working Draft) and S. 778 (Staff Working Draft)) that would require new cybersecurity standards for the private (as well as public) sector and that would create the position of National Cybersecurity Advisor in the Executive Office of the President, with authority to "disconnect a Federal or critical infrastructure network from the Internet if [the network is] found to be at risk of cyber attack."   According to a summary provided by the Senate Commerce Committee, the legislation is intended to address "vulnerability to ... cyber crime, global cyber espionage, ... cyber attacks," and other threats to "critical infrastructure" such as "banking, utilities, air/rail/auto traffic control, [and] telecommunications."  In order to achieve these goals, the legislation would "require the National Institute of Standards and Technology to establish measurable and auditable cybersecurity standards that would be applicable both to government and the private sector."  Industry has long inveighed against such standards, arguing that they would stifle innovation and impede economic growth.  Those arguments may still prevail.  But the obvious deficiencies in the government’s current reliance on voluntary measures by private industry, the dramatic rise in serious cybercrime, and broad scale infiltrations of government and private systems that have been traced back to Russia and China have made many Members of Congress impatient for progress on improving system defenses.

EU Finds that U.S. Internet Gambling Law Violates WTO Rules

The European Commission announced that it has "found that US laws on remote gambling and their enforcement against EU companies constitute an obstacle to trade that is inconsistent with [World Trade Organization] rules."  Specifically, the EC found that elements of US gambling law involving online betting on horse racing violated Articles XVI (market access) and XVII (national treatment) of the General Agreement on Trade in Services (GATS).  This conclusion is unsurprising, since the WTO has repeatedly ruled that US restrictions on Internet gambling were inconsistent with its trade obligations under the GATS.  As we previously reported, these earlier rulings came in the context of a WTO complaint that Antigua and Barbuda filed against the United States in 2003.  Although the EC stated that its report concluded that WTO action "would be justified," it also indicated that it would prefer to resolve the dispute through negotiations with the Obama Administration.

House of Lords Rules that UK Surveillance Law Trumps Attorney-Client Privilege

The UK House of Lords ruled that Part II of the Regulation of Investigatory Powers Act 2000 (RIPA) permits UK authorities to covertly monitor communications protected by the attorney-client privilege.  RIPA Part II authorizes the interception of communications and covert surveillance.  The question of the applicability of RIPA to attorney-client communications arose after the media reported that a criminal case against solicitor Manmohan Sandhu was based on evidence that the police obtained by covertly monitoring his conversations with clients at a police station.  In light of this news, four individuals who were refused assurances that their police station conversations with counsel would not be monitored (and one individual who was refused a similar assurance with regard to his consultations with a psychiatrist) sought declarations that such covert surveillance of consultations would be unlawful.  A divided Divisional Court found that Parliament had intended RIPA to authorize surveillance of such consultations between legal advisers and their clients.  But it also ruled that, because any surveillance of the petitioners was not subject to "an enhanced authorising regime" (such as that which RIPA prescribes for "intrusive surveillance" in private places), this surveillance would have violated Article 8(2) of the European Convention on Human Rights, which requires that any intrusion into private life or correspondence be "in accordance with the law" and carried out for one of several specified purposes.  Despite this favorable ruling, the petitioners asked the House of Lords to review both RIPA's general impact on the attorney-client privilege, and its particular effect on detainees' right to private consultation with a lawyer at a police station.

Court Rules that CDA May Not Immunize Website that Used Meta Tags and Solicited Content

A recent ruling by a federal court suggests that soliciting defamatory content from third parties and using meta tags to affect the content that appears in search results may be sufficient to strip a website of its immunity for third-party content under the Communications Decency Act.  The ruling regarding meta tags seems particularly significant, since it means that websites may be liable for content that appears on search sites as a result of the website’s use of meta tags.

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