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        Breaking
News
July
7, 2004: The FTC Hooked on Phonics Case Settlement, on deceptive privacy
practices.
For the case and analysis, click here.
July
3, 2003: Two
cases were decided in the United States this week that have gotten a substantial
amount of attention. One is the US Supreme Court decision on COPA (children and
access to porn images online). The other is the Councilman decision which
determines whether an e-mail service provider's reviewing the content of its
customers' e-mails is an illegal wiretap. While Parry has explained the cases
and make the cases themselves available either here at aftab.com or on
theprivacylawyer.blogspot.com blog, she believes that the reaction to both
decisions is overblown.
The
Councilman decision (First Circuit Court of Appeals, Mass.) overturned
the charges against a company that had accessed e-mails from its hosted e-mail
service server to learn how its customers used Amazon.com. The company had been
charged with interception of an electronic communication under the ECPA (the US
federal wiretap law). The court determined that e-mails, once they had arrived
at the e-mail hosts server were no longer "in transit" which is an essential
element to the crime with which the company was charged. So the court threw out
the charges. When the company argued that their accessing the e-mails from the
server, even before the recipients had accessed them in many cases, was not a
violation of the Stored Communications Act (another section of the ECPA), the
court said that since the company had not been charged with that crime, it
wouldn't review that issue.
But the decision is being portrayed at doing
far more. It is being portrayed as having made the decision on stored
communications that it refused to make.
The real significance of this decision is the
determination that accessing e-mails is almost always a stored communications
issue, instead of an interception issue. The difference between the two is what
kind of court order, subpoena or other authorization must be obtained for
non-providers to access e-mails (the stored communications requirements are far
less onerous) and the penalties for violating the law.
An e-mail user's rights with their ISP are
governed by their terms of service, user agreements and their privacy policies,
all of which are legal agreements and can be enforced and, if misleading,
prosecuted.
To read more, check out Parry's Privacy Lawyer
blog,
theprivacylawyer.blogspot.com.
COPA
(note this is not COPPA, the privacy law covering children)
Enacted in late 1998 and put on legal hold
since its enactment, COPA has never been in effect. It has been reviewed twice
by the US Supreme Court and is now sent back once more for further findings.
It's being sent back to the lower court for a full trial on the First Amendment
and privacy issues implicated by the law will probably mean the law is dead, but
it is not yet final. This decision was very close and something as simple as a
new technology may sway the Supreme Court Justices ot chane their ovte. It will
take only one vote change ot uphold the law when it works its way back to the
Supreme Court.
COPA was intended to protect children online
by requiring proof of age at any commercial pornography website before any
sexually explicit images could be viewed. It sounds very reasonable. But from
its inception, COPA was in trouble. The DOJ sent a letter to Congress explaining
the problems the chief prosecutorial agency of the US federal government saw
with the law.
The problems included 1. the difficulties of
applying the "harmful to minors" test (which uses community values to make the
legal determination of what content falls within the definition) since no one
knows which community's values to use when the content is available worldwide
online and 2. how the privacy of adult legal porn consumers could be protected
if they had to prove who they were to view it online. (Any adult in the US can
walk into a newsstand and purchase a Playboy magazine. While they might have to
show the clerk their ID to prove they are old enough to purchase the magazine,
no record is kept of who they are and what they bought if they are willing to
pay cash. No such protection of their reading and viewing practices exists
online, at least not yet.)
To read more, check out Parry's Privacy Lawyer
blog,
theprivacylawyer.blogspot.com.
When certain news breaks, Parry Aftab is often called to provide the needed
expertise. This page gives everyone a heads up when something important breaks
and may be able to help you handle the story even if you can't reach Parry
herself or arrange for her to be on camera.
If you are a member of the media and want to receive alerts when something
breaks, send Parry an
e-mail directly. She'll add you to her private alert
e-mail list and will send you a message when something hits.
If you need to reach Parry on a breaking story, you can contact her on her
cell phone: 201-463-8663 or
via e-mail. If she is unavailable to answer her
cell, there is an alternate number provided to help you locate her or someone
else who can comment quickly. To learn more about how we work to help members of
the media, visit our For the Media pages.
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Parry
Aftab, Esq., 
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