Searches – Learning from Google’s Response to the Department of Justice

As most know, Google has refused to comply with a Department of Justice subpoena for records related to queries entered into its search engine. What has not been discussed, in detail, is one of the grounds for Google’s objection: that the subpoena is overly broad, unduly burdensome and unlikely to lead to the production of relevant evidence. This is an important criteria for Internet infrastructure providers to remember. Civil litigants who don’t understand how your business works often subpoena information wildly unrelated to their goals. Understanding that you are not generally required to respond to subpoenas of that nature and developing a method of communicating that knowledge to the requesting party, may do a lot to minimize the amount of work you are required to do to comply with subpoenas of that type. Internet News Article

Prohibited Communications – New Law Criminalizes Anonymous “Annoying” Posts

A revision to an anti-harassment law gives the Department of Justice the power to prosecute people who post “annoying” comments anonymously. As might be expected, the term “annoying” is not defined in the legislation. Because this is a criminal law, it provides no private right of action – meaning the Department of Justice must enforce this provision. However, Internet infrastructure providers should begin to expect speech related abuse complaints to cite this law as a reason to terminate customers and as a potential source of liability for the provider. Cnet Article Library of Congress versions of the Bill

SPAM – Private Entities May Block CAN-SPAM Compliant E-mail

The Supreme Court let stand a lower court decision that the CAN-SPAM Act did not pre-empt more restrictive private anti-spam rules. As noted in an earlier post, the plaintiff made two arguments. First that CAN-SPAM created a standard that private entities were required to honor. Second that the University of Texas infringed free speech rights by blocking legitimate e-mail. Both arguments were rejected. The Supreme Court’s decision solidifies the general understanding among Internet infrastructure providers that they may implement e-mail policies that differ from the CAN-SPAM Act. ecommerce times article

First Amendment /Jurisdiction – Appellate Court Dismisses Yahoo U.S. Suit Which Claimed French Court Decision Was Invalid in the U.S.

The joy that civil libertarians, Internet providers, and First Amendment advocates expressed after a U.S. District Court held that a French court assessment of fines against Yahoo was invalid in the U.S. will be short lived. This decision was recently overturned on appeal. However, the Court of Appeals reversed this decision on technical grounds – saying that the free speech, or First Amendment issue was not ready for a decision. Basically, the Court of Appeals said that the French court had not even attempted to enforce its decision in the U.S., and as a result, there was no need to determine whether that court’s decision was enforceable in the U.S. This decision is important simply because it illustrates the continued difficulty courts of all jurisdictions are having when faced with questions of whose laws apply to Internet disputes. It does, however, clarify jurisdictional issues, finding that a French entity can secure jurisdiction over a California company in U.S. courts. Decision

Employer Held to Have Duty to Report Employee’s use of Company Computer to Transmit and Access Computer to Transmit and Access Child Pornography

A New Jersey Court of Appeals has held that an employer who knows that an employee is using the employer’s computer to access and transmit child pornography has a duty to report that knowledge to relevant authorities, and may be liable to the child for its failure to report the employee’s activities. In this particular case, the employer had been informed, and had determined through an internal investigation, that the employee had accessed pornographic site, including those that could reasonably be determined to contain child pornography based simply on the url of the site. This case is important to Internet infrastructure providers for two reasons. First it reinforces the need for you to create, implement and enforce your child pornography policies. These policies should include features designed to ensure that your employees do not gain access to child pornographic material reported to you. The second, is to take allegations of improper employee behavior seriously, and take action on internal investigations. Opinion

Trademark – Google Sued For Trademark Infringement for Third Level Domain Name

Google has been sued for Trademark infringement by “Jews for Jesus.” The suit is based on Google’s “blogspot” service. The service offers blogs with third level domain names, i.e. “jewsforjesus.blogspot.com.” The suit makes a number of claims, some far from credible, or recognized by current Trademark law. The most important is that Google profits from the domain name – jewsforjesus – and as a result, bears some liability for its user’s infringement. This claim will be hard to make, since U.S. law requires that liability only occurs if the registrar had a bad faith intent to profit from the infringement when the domain name was registered. This case is important to follow as more and more Internet Infrastructure providers add innovative services, including blogging, to their product offerings in order to differentiate their products. Discussion of the case

Spyware – More Restrictive of Two “anti-spyware” Bills Passes Senate Committee

Sen. Conrad Burns’ bill entitled the “SPYBLOCK Act” has been voted out of the Senate Commerce Committee. This bill would impose penalties of up to $3 million for violations of its provisions. It also requires permission prior to downloading software, and prohibits, in some forms, pop-ups. Any software downloaded would not be able to collect “sensitive” information, such as social security numbers. A complementary Act, sponsored by Mary Bono, has already passed the House. This bill, and others like it, is important because of the definitional details it contains. Bills such as this one, tend to be leveraged by subsequent legislation. As a result, it is important to ensure that your business activities do not fall within the definitions, and as the Internet becomes further regulated become subject to significant regulation. Bill Status and Text