This has been a busy Internet law week. I'd like to sum up some of the more interesting developments:
This morning, the Senate Judiciary Committee approved the Leahy-Lee ECPA reform bill, which will update federal communications privacy law to require law enforcement get a search warrant to compel disclosure of stored electronic communications and other private content. Currently, the Electronic Communications Privacy Act of 1986 allows government to compel providers to disclose content without a warrant if the messages are more than 180 days old. Additionally, the Department of Justice argues that under the current law, messages are unprotected if they are opened, read, or in the trash or drafts folder. As I've written here before, the ECPA reform bill would be a major advance in communications privacy.
Meanwhile, the House of Representatives held a hearing on location privacy issues, discussing when and how law enforcement should be allowed to track your physical location with GPS, cell tower data or other technology. You can read more about that hearing from Kevin Bankston at CDT, or watch that hearing yourself.
Earlier in the week, the U.S. House of Representatives passed the controversial Cyber Information Sharing and Protection Act (CISPA). The bill would create a loophole for Internet companies to give the government information about you so long as it fits under a vague definition of "cyber threat" information, overriding any and every existing privacy law. In good news, however, today the Senate refused to take it up, citing privacy concerns. The Senate is right. You can protect privacy and online security at the same time. The bill is dead, for now.
Meanwhile, the Senate is poised to approve a bill by the end of this week that would allow states to tax online sales. eTailers large and small would have to comply with detailed -- and sometimes conflicting -- regulations of all the state and local tax collecting authorities. The New York Times reports that the bill could mean a lot of money for state and local governments, and is strongly supported by brick and mortar stores. But it would greatly prejudice small online businesses who would have to figure out how to comply with over 10,000 different tax regulations. Taxing online sales has come up before, but this bill is worse than earlier proposals. According to CNET:
Eight years ago, Sens. Mike Enzi, R-Wyo., and Byron Dorgan, D-N.D., introduced legislation that would have allowed Internet sales taxes to be collected -- but only after states simplified and standardized their tax systems through a process created in 2000. Enzi said at the time that it was necessary to require "dramatic simplification in almost every aspect of sales and use tax collection and administration" including "a reduced number of sales tax rates" and "reduced audit burdens for sellers." [THAT BILL DIDN'T PASS]
The current version of S.743, however, lacks those protections. Small sellers with no profits could be subject to audits in dozens of states. Each of the nearly 10,000 local tax jurisdictions could specify a different tax rate. Businesses would also have to figure out how to handle the complexity of integrating as many as 46 state government-supplied software packages into Web ordering systems.
There has been almost no outcry from the traditional constituencies that are suspicious of online regulation and its detrimental effect on innovation and customer service. To find out more about this important issue, the Heritage Foundation has the story.
Meanwhile, Texas Magistrate Judge Stephen Smith, reknown for actually taking the time to understand the surveillance technologies he is asked to approve, rejected an FBI application to install spyware on an unknown fraudster's computer. Judge Smith's opinion revealed that law enforcement wanted to use the surveillance tool to surreptitiously take photographs of its user through yo webcam, record Internet activity, user location, email contents, chat messaging logs, photographs, documents, and passwords. The Judge denied the request because the FBI did not know where the target computer was located. It could have been out of the District, in a public library, an Internet café, or a workplace accessible to others. Or it may be used by family or friends uninvolved in the illegal scheme. Without more assurances that innocent people would not be wiretapped, photographed and otherwise surveilled, the Judge would not approve the request.
Earlier today, Google updated it Transparency Report, showing the number of government requests it received for content removals during the second half of 2012. The company received 2,285 government requests to remove 24,179 pieces of content — a 26% surge from the first half of 2012. ArsT took a look at the data, which shows Turkey took the place of top censor from the United States this time, requesting that 8,751 pieces of content be removed. Google complied with 62 percent of such requests. The Turkish requests largely came from 16 requests by the government to look into possible copyright infringement. In its report, Google said it “removed 6,851 search results, which we determined to fall within the scope of the order.” There was also a “sharp increase” in takedown requests from Brazil. According to the report, “nearly half of the total [Brazilian] requests—316 to be exact—called for the removal of 756 pieces of content related to alleged violations of the Brazilian Electoral Code, which forbids defamation and commentary that offends candidates.” Google is taking the laudatory step of appealing many of the cases on the basis that the content is protected by freedom of expression under the Brazilian Constitution.
And finally, though it is not Internet news exactly, today the Second Circuit Court of Appeals came out with a great copyright ruling, holding that appropriation artist Richard Prince's use of dozens of photographs from a book about Rastafarians to create a series of collages and paintings was fair use. Our own Fair Use Project had filed an amicus brief on behalf of The Andy Warhol Foundation for the Visual Arts urging the Second Circuit to reverse that decision. As we argued at the time we filed the brief, "for more than a century, artists like Picasso, Duchamp, Rauschenberg, and Warhol have taken images they found in the world around them, and incorporated those images into their art. These artists and countless others have created an important canon of modern art that relies on the appropriation of existing images to create highly expressive works with powerful new meaning." Artists have legitimate reasons to use existing images beyond just to parody them or comment directly upon them and Cariou v. Prince now vindicates that understanding. For more on that ruling, see Julie's blog post from today.
And, that's all for today folks.