Telecommunications

Perkins Coie Partner Albert Gidari was quoted this week in an article published in BNA's Privacy & Security Law Report titled "ISPs Allegedly Released Data Without Notice To Meet Flawed Law Enforcement Demands".

Perkins Coie Partner Albert Gidari, a recognized authority on privacy and electronic surveillance issues, was quoted Monday on page one of The New York Times on efforts to revamp federal laws regarding wiretapping by law enforcement and terrorism authorities.

Perkins Coie Partner Albert Gidari was quoted Thursday morning in a story on NPR's "Morning Edition" about this week's appeals court ruling regarding warrant requirements for cell phone records. The decision from the U.S. Court of Appeals for the Third Circuit stated judges have the right to require warrants before law enforcement officials can obtain records that may show a cell phone customer's location.

In last week's Wall Street Journal article, "Stalkers Exploit Cellphone GPS," Perkins Coie Partner Albert Gidari explained the challenges cellphone carriers face when police request location-tracking data.

Perkins Coie Partner Albert Gidari was quoted in an Associated Press article this week on a proposed change to federal law that would allow the FBI to obtain electronic records from Internet service providers - without a court order.

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.

The Federal Communication Commission’s efforts at regulating network neutrality suffered a set back at the hands of the U.S. Court of Appeals for the D.C. Circuit, which vacated the FCC’s Comcast Order for lack of jurisdiction.  Comcast Corp. v. FCC, No. 08-1291, 2010 WL 1286658, at *1, 19 (D.C. Cir. April 6, 2010). 

In Pacific Bell Telephone Co. v. Linkline Communications, Inc., 129 S. Ct. 1109 (2009), the Supreme Court of the United States rejected a price squeeze claim under § 2 of the Sherman Act asserted by four Internet service providers (ISPs) against AT&T over its retail prices for digital subscriber line (DSL) access.  Under the conditions of a merger with BellSouth, AT&T was required by the FCC to continue to provide wholesale DSL transport service to independent ISPs at a price that did not exceed its own retail price for DSL service.  In re AT&T Inc. and BellSouth Corp., 22 FCC Rcd. 5662, 5814 (2007). 

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).

The Federal Communications Commission and the Colorado Public Utilities Commission are seeking comment from industry and other interested parties on the privacy implications of deploying smart grid technology.

Perkins Coie Partner Albert Gidari was quoted in "Snooping on Web Traffic Gains Favor Amid Fears," a Wall Street Journal article published on July 29.

In an article on the use of cell phones as an investigative tool for law enforcement, Perkins Coie Partner Albert Gidari told The New York Times that wireless carriers "receive hundreds of requests a month from law enforcement" for real-time tracking.

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).

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.

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).

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.

Earlier this month, Senators Rockefeller, Snowe, and Nelson introduced S.773, the "Cybersecurity Act of 2009." The bill is primarily designed to address cybersecurity in the federal government, but various provisions could impact you or your business, particularly if you are designated as a "critical infrastructure information system or network," provide cybersecurity to the federal government, are a small- or medium-sized business, or are an institution of higher learning. The bill would (1) create new government agencies, work forces, and tasks; (2) create new priorities for existing federal agencies; and (3) implement new Presidential powers to address cybersecurity on a national scale.

The government uses your mobile phone as a tracking device, and they don't believe probable cause need be shown to track you. But civil litigants and private application providers are also tracking you, and there are few standards for the practice on the civil side. Albert Gidari will be addressing this issue at an upcoming seminar.

Perkins Coie Partner Dax Hansen assisted CTIA-The Wireless Association in developing "Best Practices Guidelines for Mobile Financial Services (MFS)" applicable to Mobile Financial Service Providers in order to promote an environment where MFS transactions are authorized, secure and compliant with applicable laws and industry guidelines, and to protect user privacy and financial data.  The guidelines became effective January 28, 2009.

Albert Gidari was quoted this week in a CNET article on lawmakers' efforts to require Internet service providers and operators of Wi-Fi access points to keep records about users for two years to aid police investigations.

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.

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.

On October 21st the Federal Communications Commission amended Part 9 of its regulations in order to implement the requirements of the New and Emerging Technologies 911 Improvement Act of 2008 ("NET 911 Act"), which was enacted on July 23, 2008. In re Implementation of the NET 911 Improvement Act of 2008, Report and Order, FCC 08-249, WC Docket No. 08-171 (Oct. 21, 2008).  In sum, the NET 911 Act and the FCC's implementing regulations require that providers of interconnected voice over Internet Protocol service have access to any and all capabilities they need in order to provide 911 and enhanced 911 service in full compliance with FCC rules.

On October 22, 2008 the FTC announced that it would suspend enforcement of its new "Red Flag Rules" for combating identity theft for six months, which gives entities subject to the rule until May 1, 2009 to implement a written "Red Flag Program" to detect, prevent and respond to threats of identity theft in connection with accounts covered by the rules.  In its Enforcement Policy Statement that accompanied the announcement, the FTC stated that:

[S]ome industries and entities within the FTC’s jurisdiction have expressed confusion and uncertainty about their coverage under the rule.  These entities indicated that they were not aware that they were undertaking activities that would cause them to fall within FACTA’s definitions of “creditor” or “financial institution.”  Many entities also noted that because they generally are not required to comply with FTC rules in other contexts, they had not followed or even been aware of the rulemaking, and therefore learned of the requirements of the rule too late to be able to come into compliance by November 1, 2008.

Thus, the FTC delayed its enforcement date in order to provide businesses ample time to bring their policies and procedures into compliance with the new rules.

• FTC Press Release: http://www.ftc.gov/opa/2008/10/redflags.shtm
• FTC Enforcement Policy Statement: http://www.ftc.gov/os/2008/10/081022idtheftredflagsrule.pdf

For more information about the Red Flag Rules and how they might affect your business, please review our full posting regarding the rules here, and contact us with questions.

Joe Cutler: 206-539-6014
Veronica McGregor: 415-344-7062

On August 25th the Federal Communications Commission issued a Notice of Proposed Rulemaking to implement the requirements of the New and Emerging Technologies 911 Improvement Act of 2008.

Perkins Coie Partner Dax Hansen recently spoke on behalf of the CTIA-The Wireless Association at the Federal Trade Commission's town hall meeting, Pay on the Go: Consumers and Contactless Payments.

The deregulation of telecom and cable television industries under the Telecommunications Act of 1996 brought on widespread telecom and video television competition. In the new competitive marketplace, selling rights to reach tenants in office buildings and apartment houses became a lucrative source of revenue for building owners. Numerous companies sought riser and rooftop access agreements and leases for space for antennas and equipment, making monthly or annual payments in exchange for access. Today, however, many of the start-up competitors have folded, and the primary source of revenue for these companies comes from exclusive access contracts with telecom or cable providers who are now the two most aggressive facilities-based providers of telecom and video services to office buildings and apartments. Whether exclusive access for telecom and video services is good for building owners is still an open question.

http://www.perkinscoie.com/news/pubs_detail.aspx?publication=1754&op=updates

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).

The President is soon expected to sign the New and Emerging Technologies 911 Improvement Act of 2008, which provides a number of benefits for interconnected Voice over Internet Protocol (“VoIP”) service providers.

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.

Perkins Coie Partner Al Gidari was quoted Monday in a story focusing on NeuStar, a company that runs a digital directory for telephone companies. The story explains how the FBI sought access a few years ago to one of NeuStar's databases that "contained 310 million phone numbers in the United States and Canada."

Author Declan McCullagh blogged on proposals for warrantless surveillance of the Internet presented by FBI Director Robert Mueller and Republican Representative Darrell Issa of California at a hearing on Capitol Hill. Gidari raised the issue of how such a plan will conflict with more restrictive state laws.

The article, "FBI Data Transfers Via Telecoms Questioned," describes little-known electronic connections between telecommunications firms and FBI monitoring personnel.

Long before today’s debates over changing the Foreign Intelligence Surveillance Act, another wiretapping feud, between government in one camp and technology and civil liberties groups in the other, helped shape the balance of power in the Information Age.  Perkins Coie Partner Al Gidari is quoted in this article on the government's role in the development of standards for CALEA (Communications Assistance for Law Enforcement Act).

Michael Sussmann was quoted in a Washington Post story on a proposal in the House of Representatives for a compromise with Senate legislation (supported by President Bush) that provides retroactive immunity to communications providers alleged to have participated in the NSA's warrantless surveillance program.

Perkins Coie Partner Michael Sussmann was quoted in a recent, front-page article in The New York Times concerning the impact of Senate agreement on broad amendments to the Foreign Intelligence Surveillance Act (FISA).

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.

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 September 25, 2007, the full Senate Judiciary Committee convened a hearing, "Strengthening FISA: Does the Protect America Act Protect Americans' Civil Liberties and Enhance Security?"  Perkins Coie partner Michael Sussmann provided written testimony on the perspectives of communications providers on the Protect America Act of 2007.

In a Report and Order released on August 6, 2007, the Federal Communications Commission ruled that interconnected Voice over Internet Protocol providers are now subject to regulatory fee obligations. In re Assessment and Collection of Regulatory Fees for Fiscal Year 2007, MD Docket No. 07-81, FCC 07-140 (rel. August 6, 2007) (“2007 Regulatory Fees Order”).

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 a recent decision in WWC Holding Co., Inc. v. Sopkin, et al., No. 06-1156, 2007 WL 1600389 (10th Cir. June 5, 2007), the Tenth Circuit held that, when a mobile carrier seeks state commission designation as an "eligible telecommunications carrier" ("ETC") for purposes of receiving universal service subsidies, the Telecommunications Act does not automatically prevent the imposition of conditions for ETC designation that may affect interstate components of the carrier's service, so long as the conditions are not related to regulation of rates or market entry. The Court also held that state commissions are not required to promulgate any such ETC-related conditions during a rulemaking proceeding or in formal regulations.

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.

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.

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.

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.

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.

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.

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.