E-Commerce Law Week, Issue 562

China to Require Computer Importers to Install Censorship Software

Chinese officials have issued a directive requiring all computers that are sold in China -- whether imported or domestically produced -- to have Internet filtering software pre-installed.  The directive states that the required software, known as "Green Dam -- Youth Escort," will "effectively filter offensive Internet text and image content," including content that is "vulgar" or otherwise harmful to minors.  Although it was issued on May 19 by the Ministry of Industry and Information Technology (in cooperation with the Central Civilization Office and the Ministry of Finance), it was not made public until early this month.  Under the directive, companies selling computers in China must have the Green Dam software "pre-installed on the computer's hard drive or CD-ROM" by July 1.  On June 25, the Obama Administration lodged a formal protest with the Chinese government, suggesting that the directive might violate free trade rules of the World Trade Organization.

French Constitutional Council Rules that Internet Access is a Human Right

The French Constitutional Council struck down provisions of a proposed French law that would have authorized an administrative authority to require Internet service providers to suspend or terminate the accounts of subscribers who repeatedly violate copyright laws.  The Council found that the right to "free communication of thoughts and opinions" established under Article 11 of the Declaration of the Rights of Man and Citizen of 1789 includes "freedom to access" modern communications services such as the Internet, and determined that the law's restrictions on this right were not "necessary, appropriate and proportionate to the aim pursued."  The Council stressed that the "legislature could not entrust such powers [to terminate Internet access] to an administrative authority," but only to a court.  The Council also found that provisions that would have required Internet subscribers who felt they had been wrongly accused to produce evidence establishing the guilt of a third party effected a "reversal of the burden of proof," in violation of section 9 of the Declaration of 1789, which states that "all persons are held innocent until they shall have been declared guilty." 

FTC and DoJ Voice Support For Federal Breach Notification Legislation

The Federal Trade Commission has reiterated its call for Congress to enact legislation establishing national data security and breach notification standards.  In testimony at a recent House hearing on identity theft, FTC Assistant Director Betsy Broder stated that Congress should enact legislation "requir[ing] all organizations that hold sensitive consumer data to take reasonable measures to safeguard it, and to notify consumers when the security of their information is breached."  In related testimony, a Justice Department official stated that “[i]mmediate reporting of [data breach] incidents to law enforcement is … vital to [its] ability to investigate.”   He urged that any breach notification legislation require reporting of data breaches to the FBI and U.S. Secret Service "prior to notifying individual victims" and permit these law enforcement officials "to seek delayed notification."  This call for action could help push Congress to move forward on breach notification legislation such as H.R. 2221, the "Data Accountability and Trust Act" (approved by a House Energy and Commerce subcommittee on June 3) and S. 139, the "Data Breach Notification Act" (reintroduced by Sen. Dianne Feinstein (D-CA) on January 6).  Both bills would preempt breach notification laws currently in effect in 44 states and the District of Columbia and would establish risk-of-harm thresholds for notification.  As we have previously reported, similar data breach notification legislation has been introduced in the past several Congresses, but disputes among the various committees responsible for data security matters have blocked passage.

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