CISPA Passes House Committee Vote

Cybersecurity bills and laws are on the rise. As noted in a recent article from TheHill.com, Congress is on the move to try to enact some legislation that impacts the Internet and your privacy.

CISPA - the Cyber Intelligence Sharing and Protection Act - is not new. It was introduced last year and never cleared the Senate and was threatened to be vetoed by the White House if it did. Privacy advocates fought hard against it.

In this new version, there have been several amendments to try to appease companies and privacy advocates. For instance, one amendment extends liability protection from legal action to any company that complies with the law to share threat data with the government. Another amendment requires the government to strip any data of personally identifiable information. This would help to alleviate some privacy concerns and goes a step forward from the last version which initially required companies to strip that information before providing such data to the government.

Although privacy advocates have not fully supported this bill as of yet, it appears as though a few more tweaks may get them on board, or at least a chance of a vote in Congress that could lead to approval at the White House.

27 Year Old Law Regulating Electronic Communications Needs Updating

The Electronic Communications Privacy Act (ECPA) (18 U.S.C. §§ 2510–2522) was drafted in 1986, well before the iPhone and widespread usage of e-mail. So, it's encouraging that Congress has finally started to discuss updates to the ECPA to modernize its usage.

One hot topic that needs updating is the ability for government investigators to access your e-mail messages. According to the ECPA, as it currently reads, email messages in the gmail, yahoo mail, hotmail, and/or other third party e-mail service you use could be turned over by your service provider in response to a subpoena.

The threshold to obtain a subpoena does not typically involve a judge. Accordingly, it is relatively easy to obtain. However, in an effort to protect users, e-mail service providers have started to push back on responding to subpoenas that are seeking their users' e-mail messages.  As a result, lawmakers are now discussing with Google, the Justice Department, and others about this procedure.

The key issue is the different procedure required for physical documents in your office and/or electronic documents on the hard drive of your computer versus your e-mail messages. The documents require a search warrant, not just a subpoena. In accordance with the 4th Amendment, "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Accordingly, search warrants have a much higher threshold than a subpoena, which does not require probable cause.

With privacy advocates in favor of the more stringent requirements and Congress focusing in on the issue, we may see changes and updates this year to finally come in line with the 21st century.

Direct to Consumer Online Sales Limitation in India

If you are an online enterprise in the United States that sells goods directly to consumers and are looking for a new market, you may need to skip India for the time being. Based on current regulations, as noted in a recent article on ZDnet, any foreign company and/or local Indian company with foreign investment that advertises goods for sale cannot sell directly to the consumer. Instead, the foreign company will need to direct users to local Indian establishments and/or other online sites that are operated by an Indian entity (without foreign investment) that sells such goods.

Although Amazon.com and possibly other organizations are working with the Indian government to change those laws, it may be a long while before there is any movement. With good reason to protect local businesses and their competitive edge, it would not make sense to allow foreign companies to sell goods directly to consumers online.

The lack of any physical presence for an online retailer results in low overhead and lower costs to be overly competitive and possibly detrimental to smaller local businesses. However, given the size of most online retailers going global, it is typical that they build large distribution centers and create many jobs overseas. So, if there are required offsets to account for the possible detriment, there may be some leverage that could make everyone happy.

Cell Phone Unlocking

If your cell phone contract just expired and you are now month to month and 'free' to switch to another provider, it may be as easy as a phone call to your current provider to request your phone to be unlocked. If you are not out of contract but want to switch providers OR are travelling internationally and intend to use the phone on a different carrier network for a period of time, beware of possible copyright infringement liability if you try to unlock the phone yourself.

As a result of inaction by the Library of Congress to extend an exemption, as of January 26, 2013, unlocking a phone on your own is illegal. However, on March 4, 2013, the White House issued a statement that they have taken note of this inconvenience and is asking Congress to take action for the benefit of cell phone users nationwide. The FCC may also issue some regulatory action to preserve the prior exemption until new laws are in place.

Although cell phone providers indicate it should not be difficult for a user to contact them and ask for an unlock, as most consumers know, the wait times for customer support and/or endless transfers from one representative to another is time consuming. Furthermore, not all physical store locations are convenient, nor are the available when travelling internationally. The convenience factor is huge and should not impose any hardship on the cell phone provider, except for the chance to talk to you to change your mind - if you are leaving their service.

Copyright Alert System - Six Strikes System

If you are notorious for downloading movies, music, games, books . . . your ISP may be contacting you soon. As this is not as threatening as receiving a cease and desist letter, or even a lawsuit, from a major studio or publisher, this may be a good thing.

In an effort to decrease litigation and increase education, certain ISPs look to give users several chances to understand and correct any possible illegal behavior, before possibly being sued.

As noted in the Verge article, once a copyright owner identifies an IP Address of a user that is hosting content without permission, they will alert the ISP. It will then be up to the ISP to determine how to proceed with alerting the user, at the IP Address provided, to educate them on the possible inappropriate behavior and/or impair their services for a period of time.

If the ISP is contacted about a specific IP Address six times, thus the 'six strike system,' the ISP may forgo further alerts and may warn the user that a content owner may pursue legal action and that the ISP may be forced to reveal the user's contact information.

To the extent a user does reach the 'six strike' mark, the content owner will be in a much better position to suggest to the court that the user was well aware of their activity and failed to correct their behavior. Accordingly, if it gets to that stage, the user may have a tougher time to defend themselves by saying 'they didn't know what was going on.'

Overall, the education angle should help reduce any inappropriate behavior and hopefully save a lot of legal fees.