Case

Today, the Supreme Court in City of Ontario v. Quon, et al., decided not to address whether a city police officer had a reasonable expectation of privacy in text messages sent using an employer-provided pager. Rather than confront the issue, the Court declined to "elaborat[e] too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear." The Court also declined to "establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices." Instead, the Court assumed that the police officer had an expectation of privacy in text messages sent through his employer-provided phone, and found that the warrantless search of his text messages was reasonable.

On January 12, 2010, the U.S. Court of Appeals for the D.C. Circuit rejected a challenge by Core Communications, Inc., the Public Service Commission of the State of New York, and the National Association of Regulatory Utility Commissioners to a November 2008 Federal Communications Commission (FCC) order setting forth the basis for its authority to institute rate caps on intercarrier compensation for telecommunications traffic bound for internet service providers (ISPs).  Core Communications, Inc. v. FCC, Nos. 08-1365, 09-1046, 08-1393 & 09-1044, 2010 WL 86672, at *1, *7 (D.C. Cir. Jan. 12, 2010).

In a decision issued on June 29, 2009 the Tenth Circuit held that a Web site advertising the sale of personal telephone records (1) committed an unfair practice in violation of the Federal Trade Commission Act; (2) that the Federal Trade Commission was authorized to enjoin; and (3) the Web site operator was not entitled to immunity under the Communications Decency Act.  F.T.C. v. Accusearch Inc., No. 08-8003, 2009 WL 1846344 (10th Cir. June 29, 2009).

Today, a federal judge dismissed all claims against communications providers who were alleged to have cooperated with the NSA in undertaking warrantless wiretapping in the United States, beginning soon after 9/11. The dismissal upheld Section 802 of the FISA Amendments Act (FAA), which Congress passed in July 2008 to provide complete retroactive immunity to any provider who did participate in the NSA program. Despite upholding immunity for providers, the court allowed lawsuits against the government to proceed. Although there may be appeals, this decision brings the lawsuits a considerable step closer to final conclusion. And as legal challenges to the FAA (or its predecessor, the Protect America Act) fail, providers who are subject to the enhanced surveillance provisions created under the FAA should be reassured about the Constitutionality and legality of new statutory obligations they are under.

The American Automobile Association (AAA) recently sued Darba Enterprises, Inc. for using the AAA mark in its domain name, on its website, and in pay-per-click advertisements.  Darba moved to dismiss the claim based on lack of personal jurisdiction; however, the court held that by maintaining a commercial website, Darba reached beyond its home state of Nevada to purposefully avail itself of the benefits of the California forum.  The American Automobile Association Inc. v. Darba Enterprises, Inc., No. C-09-00510 (N.D. Cal. Apr. 21, 2009).

On January 15, 2009, the Foreign Intelligence Court of Review affirmed an earlier classified opinion that denied a provider challenge to the warrantless surveillance provisions of the now-defunct Protect America Act.  The appellate court confirmed that providers who received warrantless "directives" have standing to challenge the directives on behalf of their customers; it held that an exception to the Fourth Amendment's warrant requirement permits collection of foreign intelligence pursuant to directives; and it found harmless the "incidental collection" of communications of Americans if an American were communicating with a targeted non-U.S. person who is overseas.

On July 8, 2008, a clearly annoyed U.S. Court of Appeals for the D.C. Circuit ordered the Federal Communications Commission (FCC) to provide a valid legal justification for its interim rules governing intercarrier compensation for telecommunications traffic bound for internet service providers (ISPs) by November 5, 2008, or suffer vacatur of its ISP Remand Order.  In re Core Communications, Inc., No. 07-1446, 2008 WL 2649636, at *1, *11 (D.C. Cir. July 8, 2008).

In Clark v. Time Warner Cable, the United States Court of Appeals for the Ninth Circuit recognized FCC dominion over VoIP service providers, reaffirmed the uncertainties regarding which federal regulations should apply to VoIP services, and held that the FCC must determine whether traditional consumer protection regulations should apply to VoIP services.

In an order issued on September 18, 2007, United States Magistrate Judge Joan M. Azrack held that PCTDD may not be obtained with a pen register order. In the Matter of Application of the United States of America for Orders (1) Authorizing the Use of Pen Registers and Trap and Trace Devices and (2) Authorizing Release of Subscriber Information, 515 F. Supp. 2d 325 (E.D.N.Y. 2007). In so holding, Judge Azrack concurred with prior decisions from district courts in Texas and Florida. Id. at 327.

Section 230 of the Communications Decency Act provides website operators immunity from civil liability based on information provided by another "information content provider." Most courts have interpreted this language broadly and held that as long as the website operator only published - but did not participate in the creation and development of - information, it was immune from liability. A federal court in Wyoming, however, recently read Section 230 narrowly, and entered judgment for the Federal Trade Commission in a false advertising case against Abika.com, a firm whose website offered information products, including records of telephone call details. (Federal Trade Commission v. Accusearch, Inc., d/b/a/ Abika.com (D. Wy., September 28, 2007). Customers would place orders with Abika for confidential information about specific telephone numbers. Abika would buy the information, if available, from third-party vendors, then resell it to the customers. The vendors got this information illegally from people employed by or otherwise associated with telephone carriers.

Sweepstakes can be effective vehicles for marketing products and services and engaging consumers with a brand during the holidays. However, sweepstakes are highly regulated at both state and federal levels and can trigger legal challenges if not carefully structured.

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 a decision issued on March 21, 2007, the Eighth Circuit handed a victory to VoIP service providers in denying consolidated appeals of the FCC's Vonage Order. See Minn. Pub. Util. Comm'n v. FCC, No. 05-1069, slip op. (8th Cir. Mar. 21, 2007).  However, the court emphasized that its review of the Vonage Order was limited solely to the record that existed before the FCC at the time of the order. If future advances in technology undermine the "central rationale of the FCC's decision," (i.e., that it is impractical or impossible to identify the geographic location of nomadic VoIP customers), then the court noted that the preemptive effect of the Vonage Order would need to be reexamined.

In an order issued on March 1, 2007, the FCC confirmed that wholesale telecommunications carriers are entitled to interconnect and exchange traffic with incumbent local exchange carriers (LECs) when providing services to other service providers, including VoIP providers, pursuant to sections 251(a) and (b) of the Telecommunications Act.

U.S. District Judge Nanette K. Laughrey of the Western District of Missouri issued an order on January 18, 2007 in Comcast IP Phone of Missouri, LLC v. Missouri Public Service Commission, et al., Case No. 06-4233-CV-C-NKL, which should be of interest to all providers of Voice Over Internet Protocol ("VoIP") services. The order denies Comcast's motion for a preliminary injunction to prevent the Missouri Public Service Commission ("PSC") from asserting jurisdiction over Comcast's VoIP service, known as Digital Voice, prior to a Federal Communications Commission ("FCC") order determining the appropriate regulatory framework for Digital Voice.