JOLT Digest

New Law Expands Government Surveillance Powers
By Daniel Ray — Edited by Sarah Sorscher

H.R. 6304 — FISA Amendments Act of 2008
Full Text of Enrolled Bill
Senate Vote Summary
GovTrack.us Summary

On July 9, the Senate passed H.R. 6034, the FISA Amendments Act of 2008, and President George W. Bush signed it into law the following day. The new law modifies the Foreign Intelligence Surveillance Act of 1978 (“FISA”) to expand (subject to certain new checks) the federal government’s surveillance powers and retroactively immunize telecommunication companies that cooperated with the warrantless wiretapping program brought to light in 2005.

The New York Times summarizes the politics surrounding the FISA issue, in which presumptive Democratic nominee for president Barack Obama’s “yea” vote attracted scorn from some Democrats.

The Electronic Frontier Foundation (PDF), a longtime opponent of President’s surveillance program, calls Section 202 an immunity “compromise” in name only.

Orin Kerr, writing at The Volokh Conspiracy, criticizes as “misleading” media coverage that ignores the law’s new procedural safeguards (as compared to last year’s less restrictive Protect America Act (“PAA”)).

On the issue of immunity, Charlie Reina (writing at the Huffington Post), regrets that the public will never know who was monitored or which companies cooperated with the original warrantless wiretapping requests.

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Fifth Circuit Holds No Safety Exception to Communications Decency Act ISP Immunity
By Anna Volftsun — Edited by Nicola Carah

Doe v. MySpace, Inc.
Fifth Circuit, May 16, 2008, No. 07-50345
Slip Opinion

On May 16, 2008, the Fifth Circuit unanimously upheld the Western District of Texas, finding Section 230(c)(1) of the Communications Decency Act (“CDA 230”) barred a parent’s claims for negligence and gross negligence against the social networking site, MySpace.com. The suit was brought on behalf of Doe’s 13-year-old daughter, who misrepresented her age to create a profile on MySpace, and was subsequently contacted and allegedly sexually assaulted by a 19-year-old MySpace user.

Julie Doe, a 13-year-old minor, represented her age as 18 when creating a MySpace profile. MySpace defaults all 14-year-old and 15-year-old profiles to “private,” which restricts profile access to confirmed “friends” only. But as a result of Doe’s misrepresentation, her profile was made “public” and viewable by the all other MySpace users, including 19-year-old Pete Solis. Solis contacted Doe, the two exchanged phone numbers, and after communicating several times off-line, arranged a meeting at which Solis allegedly sexually assaulted Doe.

Eric Goldman of the Technology and Marketing Law Blog sees this as a victory for proponents of strong CDA 230 immunity. He notes that several cases leading up to the decision, including Fair Housing Council of San Fernando Valley v. Roommates.com, Mazur v. eBay, and Doe v. FriendFinder, Inc., had evinced a trend towards loosening the immunity provided to internet providers under the statute. While Goldman hopes the MySpace decision will discourage plaintiffs from continuing to bring claims against websites for failing to protect or police its users, he remains “flummoxed by the number of cases [he is] seeing involving teens making poor (and, in some cases, life-altering) decisions using MySpace.”

Sam Bayard of the Citizen Media Law Project is more ambivalent about the outcome. While he believes that the CDA 230 is an important protection for internet service providers, he thinks the decision may have gone too far. He paraphrases John Palfrey of the Berkman Center for Internet and Society, who noted in an internal email:

“MySpace is a powerful corporate intermediary that has broad ability to control the networked public space it makes available to minors and adults alike, and it doesn’t necessarily serve any of the congressional objectives behind CDA.”

Full Text of the Communications Decency Act of 1996 at the US Government Printing Office.

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Seventh Circuit Clarifies Online Service Liability for Illegal Advertisements

By Michelle Yang — Edited by Wen Bu

Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc.
Seventh Circuit, March 14, 2008, No. 07-1101
Slip Opinion

On March 14, the Seventh Circuit affirmed summary judgment by the District Court for the Northern District of Illinois for Craigslist, holding that the online bulletin board did not violate the Fair Housing Act by providing “an electronic meeting place” that hosted, among many other things, illegally discriminatory housing advertisements. The opinion by Chief Judge Easterbrook clarified the potential liability of an online service: as Craigslist was not a “speaker” of the illegal information, it was not liable as a publisher.

Eric Goldman of Technology and Marketing Law Blog analyzes Judge Easterbrook’s reasoning as part of 47 USC 230 Week.
Howard Bashman of How Appealing provides additional links, as well as coverage on the en banc rehearing of a similar case, Fair Housing Council v. Roommates.com, before the Ninth Circuit.
Randy Picker of the University of Chicago Law School Faculty Blog sees the ruling as yet another reason newspapers are dying in the competition against less-strictly-regulated online competitors.
In 2001, Joel Michael Schwarz contributed a JOLT article about liability for third party postings in the context of practicing law over the Internet.

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House Passes Version of Controversial Wiretapping Legislation Without Telecom Immunity

By Andrew Ungberg — Edited by Wen Bu

H.R. 3773 – Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008
Full Text of House Bill
Full Text of Corresponding Senate Bill
CRS Summary of House Bill
GovTrack Summary (including House vote details)

On Friday, March 14, the House of Representatives approved H.R. 3773, the Foreign Intelligence Surveillance Act (“FISA”) of 1978 Amendments Act of 2008. The House bill, which passed 213-193, would set new rules for governmental “eavesdropping” on phone calls and emails within the United States. Originally introduced in October 2007 by Rep. John Conyers (D-MI) and several other House Democrats, the bill aims to resolve issues associated with the wiretapping program the Administration created in the wake of September 11, 2001. The House version of the bill would establish restraints for future government action, as well as the procedures for challenging those actions in court.

Unlike the Senate version of the bill, S. 2248, which the Senate passed in February, the House version does not grant immunity from civil liability to telecommunications companies accused of illegally cooperating with government surveillance.

Some other highlights of the bill:

• Government must seek approval of the Foreign Intelligence Surveillance Court before conducting surveillance.
• Intelligence agencies are forbidden from reverse-targeting American citizens through surveillance of foreigners.
• A “Commission on Warrantless Electronic Surveillance Activities” will be established to investigate government surveillance since September 11, 2001.

The Associated Press and OMB Watch report on the passage of the House bill.
Rep. Jerrold Nadler (D-NY) explained more of the process behind the House bill’s passage.
Hugh D’Andrade of the Electronic Frontier Foundation, in response to the debate on the FISA amendments, excerpted several opinion pieces on “how surveillance hurts free speech.”

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House Passes Major Patent Reform Bill

By David Lawson — Edited by Wen Bu

H.R. 1908
Full Text with Comments
CRS Bill Summary
Details of the Vote

On September 7, the U.S. House of Representatives passed H.R. 1908, a major patent reform bill, by a vote of 220-175. The bill is now on the Senate legislative calendar awaiting action.

The Washington Post identifies the players and summarizes the debate.
Peter Zura’s 271 Patent Blog focuses on the late amendments that proved necessary to the bill’s passage.
Patent Docs detail the arguments against the bill.

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