Commentary

Beginning June 13, 2009, at 12:01 a.m. EDT (June 12, 2009, at 9:01 p.m. PDT), Facebook will allow current members to select a username that will be associated with their personal profile or their Facebook Page (which is a profile page for a business, brand or public figure).  The selected username will appear at the end of the facebook.com URL in the location bar of the browser window in place of the current randomly assigned numerical reference.  An example of the use of a username would be: www.facebook.com/perkinscoie.

In big and small screen thrillers law enforcement is able to track you via your cell phone signal in seconds flat. But how real is that capability and what privacy safeguards are in place when everyone’s got a cell phone? In an interview featured on the NPR program On The Media, Perkins Coie Privacy Partner Al Gidari explains how your cell phone signal may know you better then you know yourself.

Last week, Microsoft, Google and Yahoo!, alongside a diverse coalition of leading human rights organizations, academics, investors and technology leaders, announced the launch of the Global Network Initiative. The Initiative's participants view this as a significant step forward in the effort to protect and advance technology users' freedom of expression and privacy rights.

Perkins Coie partner Michael Sussmann was quoted on the issue of FISA immunity in a Washington Post article, "Democrats to Offer New Surveillance Rules; Bill Aims to Meet Privacy and Security Concerns; Fierce Debate Is Expected" (October 7, 2007):

"Michael Sussmann, a partner at Perkins Coie in Washington who represents communications providers, said carriers that are alleged to have participated in the government's warrantless surveillance program want immunity to halt pending cases, while those who did not are either agnostic or do not want their competitors to get a free pass.

'It's a tough call,' he said. 'If they were breaking the law, it was not out of any greed -- there was no remuneration or benefit to their business. It was from a sense of patriotism and interest in protecting against terrorist attack.'"

On August 5, 2007, President Bush signed the "Protect America Act of 2007." The Act amends the Foreign Intelligence Surveillance Act of 1978 such that surveillance directed at a person reasonably believed to be located outside the United States no longer requires a government application to, and order issuing from, the FISA Court. Under the Act, communications can be monitored (i.e., intercepted) in real time or reviewed after receipt and storage, for example, in the case of email. The Act provides procedures for the government to issue directives to providers to provide data or assistance, for the government to seek an order to compel provider compliance from the FISA Court, and for the recipient of a directive to seek relief from the FISA Court from an unlawful or overly burdensome directive. Under the Act, providers receive cost reimbursement and full immunity from civil suits for compliance with any directive.

In an order issued on July 17, 2007, Judge Roslyn O. Silver of the U.S. District of Arizona sided with the majority of courts and state commissions that have addressed the issue and held that state commissions have no authority under the Telecommunications Act of 1996 ("the Act"), 47 U.S.C. § 151 et seq., to impose Section 271 unbundling and pricing requirements in an interconnection agreement ("ICA"). The case is Qwest Corp. v. Arizona Corp. Comm'n, No. CV 06-1030-PHX-ROS, 2007 WL 2068103 (D. Ariz. July 17, 2007). John Devaney of Perkins Coie LLP represented Qwest throughout the proceedings with assistance from John Roche, Lee Stein, and Steve Monde.

In an order and further notice of proposed rulemaking released on April 2, 2007, the FCC issued new rules for the protection of customer proprietary network information and extended those rules to providers of interconnected VoIP service.

The Inspector General of the Department of Justice has issued an audit report critical of the Federal Bureau of Investigation's use of NSLs, stating that, among other things, the FBI under-reported the total number of NSLs issued by 20% and obtained information it was not entitled to get under the law from service providers.  Changes in the NSL program apparently are on the way.  The report suggests that service providers should carefully review NSLs to ensure that they comply with the law when responding to NSLs and that they consult counsel whenever there is a doubt.

The Congressional Research Service has published an updated report on the legal authorities that permit the government to obtain telephone records for law enforcement and intelligence purposes. The report also notes that service providers that permit access without proper authority may be subject to civil, criminal and administrative penalties.

Priceline, Travelocity and Cingular Wireless each contracted with DirectRevenue LLC to deliver ads to consumers. To service its clients (including Priceline, Travelocity and Cingular Wireless), DR installed adware on millions of computers. The adware, which was undisclosed to users and difficult to remove, monitored the websites visited by the users and collected the information they typed into web forms. The NY AG filed a law suit alleging that DirectRevenue had violated New York consumer protection law, then pursued DirectRevenue's three major advertiser clients.

Private networks and equipment, facilities or services that interconnect public or private networks are exempt under the Communications Assistance for Law Enforcement Act or "CALEA."  But when private networks are connected to a public network like the Internet, do private network operators have any obligation to make the equipment or facilities that support the connection compliant with CALEA?  The question is an important one for businesses that provide Internet access to their employees, state and local networks, and internetworking and infrastructure providers as well as schools, libraries and advanced research networks.