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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Ninth Circuit Applies Fourth Amendment to Text Messages at Work
By Anna Volftsun — Edited by Evie Breithaupt

Quon v. Arch Wireless Operating Company, Inc.
Ninth Circuit, June 18, 2008, No. 07-55282
Slip Opinion

On June 18, 2008, the Ninth Circuit held that the City of Ontario, California violated the Fourth Amendment when Ontario Police Department officials viewed text messages sent by a department employee. The court also held that Arch Wireless, the city’s service provider, had violated the Stored Communications Act (“SCA”), 18 U.S.C. § 2701-2711, when it disclosed messages to individuals who were not the addressees or intended recipients.

In late 2001, Sergeant Jeff Quon received a pager from his employer, the Ontario Police Department. The pagers’ wireless text-messaging service provider, Arch Wireless, had stipulated that the city was required to pay overage charges for text messages exceeding a set character limit. Quon paid the overage fee several times without further inquiry into the content of the messages until August 2002, when the Ontario police Chief Scharf moved to obtain transcripts of Quon’s text messages from a support specialist at Arch Wireless.

At least three department employees, including Quon’s immediate supervisor, reviewed the transcripts and read many of Quon’s personal messages, some of which were sexually explicit. Quon and several recipients of the messages brought suit in the District Court of Central California. They appealed the district court’s holding, arguing that Arch Wireless had violated the SCA. Quon also argued that the city violated his Fourth Amendment right to be free from unreasonable search and seizure, as well as his rights under the California Constitution.

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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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En Banc Hearing of the Federal Communications Commission on Broadband Network Management Practices
Ames Courtroom, Harvard Law School, February 25, 2007
Full video recording (RealPlayer format)
Full audio recording (RealPlayer format)
Statements of FCC Chairman Martin and Commissioners Copps, Adelstein, Tate, and McDowell

On February 25, Harvard Law School and the Berkman Center for Internet and Society hosted an unusual en banc hearing of the Federal Communications Commission (”FCC”) at Harvard Law School. FCC held the hearing in response to a Petition for Rulemaking filed by Vuze, Inc., a peer-to-peer video distribution company, objecting to the network management practices of Comcast Corp., a large U.S. Internet service provider. JOLT Digest’s Debbie Rosenbaum recently covered Comcast’s filing in response to the Vuze petition.

The Ames Courtroom reached capacity well before the hearing began, and multiple JOLT Digest staff members were unable to gain access to the hearing. Other media outlets and commentators have, however, extensively reported on the proceedings. A selection of news articles and commentary follows.

Chris Kanaracus of IDG News Service reported extensively on the hearing.
Stephen Labaton of the New York Times and Cecilia Kang of the Washington Post reported on the hearing.
Mark Jewell of the AP reported on accusations that Comcast paid unaffiliated individuals to arrive early, occupy seats in the Ames Courtroom, and applaud after Comcast-friendly testimony.
Matthew Lasar of Ars Technica reports on the hearing from a technical perspective.
The Berkman Center has a roundup of additional links.
Richard Koman of Sci-Tech Today evaluated the testimony of Comcast Executive Vice President David Cohen.
Josh Stearns of Save the Internet and Sam Gustin of Conde Nast Portfolio commented on the “astroturfing” allegations.
Finally, Boston entrepreneur Christopher Herot offered detailed commentary on all portions of the proceedings.

Comcast Comments to FCC on Broadband Network Management Practices

By Debbie Rosenbaum — Edited by David Lawson

Comcast Comments to the Wireline Competition Bureau
FCC Request for Comment on Broadband Network Management Practices
FCC Request for Comment on Request for Declaratory Ruling on ISP Network Management Policies
Vuze, Inc. Petition for Rulemaking
FCC Internet Policy Statement

On February 13th, Comcast Corporation, one of the largest Internet service providers (“ISP”) in the United States, filed comments pursuant to two Requests for Comment issued by FCC’s Wireline Competition Bureau. The comments addressed 1) whether managing peer-to-peer (“P2P”) traffic generated by Comcast subscribers violates FCC’s Internet Policy Statement and 2) whether the agency should promulgate further regulations defining reasonable network management.

The FCC notices arose from an investigation launched earlier this year after Vuze, Inc., a company that uses P2P to legally distribute video content, filed a Petition for Rulemaking with FCC in objection to Comcast’s treatment of P2P connections initiated by Comcast subscribers.

In its comments, Comcast argues that the tools it uses minimize interference that would otherwise degrade the activities of all Comcast subscribers. The company requests that FCC not initiate a rulemaking proceeding to address which broadband network management practices are reasonable, and further requests that FCC declare that network management practices such as Comcast’s are reasonable and consistent with the Internet Policy Statement.

Peter Svensson of the AP (carried on Wired News) summarizes the story.
Nate Anderson of Ars Technica details Comcast’s argument.
Craig Aaron of Save the Internet argues that Comcast’s practices are much more harmful than the company admits.

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European Court of Justice holds that EU law does not require ISPs to disclose subscriber information

By Daniel Ray — Edited by Wen Bu

Productores de Música de España (Promusicae) v. Telefónica de España S.A.U.
European Court of Justice (Grand Chamber), January 29, 2008
Case C-275/06, 2008 CELEX no 62006J0275 (Jan. 29, 2008)
Opinion

On January 29, the European Court of Justice issued a Grand Chamber ruling in Promusicae v. Telefónica. The court held that European law does not require Internet service providers (ISPs) to disclose their subscribers’ identities to trade organizations for the purpose of civil litigation against them, but that European law also does not prohibit member states from imposing such requirements if the legislation sufficiently balances IP and privacy rights.

David Meyer of ZDNet UK summarizes the decision, and quotes a British ISP spokesperson who claims the ruling vindicated ISPs’ self-policing efforts.
Nikki Tait of the Financial Times cites mixed opinions from copyright holders on whether the Court’s leaving open to member states the option of legislating stricter controls will help protect copyrighted content.
Eric Bangeman of Ars Technica notes that copyright holders still have recourse because criminal charges may be brought against infringers, but that some European nations have been unwilling to press charges for copyright infringement.
Gwen Hinze of the Electronic Frontier Foundation notes that any victory for privacy advocates may be short-lived, as the decision may impel copyright holders to step up their legislative efforts to impose intermediary liability on ISPs or pan-European criminal penalties on filesharers.

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Ninth Circuit Allows Individuals to Use Devices to Decrypt Satellite Television Signals

By Nick Bramble — Edited by Wen Bu

DirecTV, Inc. v. Huynh
Ninth Circuit, No. 05-16361, September 11, 2007
Slip Opinion

Faced with the question of how to resolve a provision of the Federal Communications Act banning the assembly and modification of devices primarily designed for the unauthorized decryption of satellite signals, the Ninth Circuit held on September 11 that this provision applies only to “assemblers, manufacturers, and distributors of piracy devices” and not individual end users of such devices.

Jennifer Granick expects that the ruling will “prevent[] satellite and cable TV companies from piling on excessive damages that would punish and chill legitimate encryption research.”
Declan McCullagh discusses the various legal and illegal uses of the smart card devices purchased by defendants.

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