Vol 7 No 1 - Roger Williams University School of Law

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inform what permissible access and means of access may be.53II. ENCOURAGING E-COMMERCEEven if all consumers could have effective access to Internettechnology and efficient access to Websites, e-commerce may notreach its potential. Both consumers and online retailers haveconcerns that may lead them to limit their online activities. Thefollowing briefly summarizes some of those issues.If consumers cannot trust e-tailers, they will not shop online.Indeed, Forrester Research estimates that consumer spendingonline would have been $12.4 billion higher in 1999 if consumershad not been worried about the privacy of their information.54Those concerns are exacerbated by uncertainty over the treatmentof customer information in the event of bankruptcy proceedings.In May 2000, Toysmart, an e-tailer of children’s toys, wentbankrupt and sought to sell customer information that it collectedunder a privacy policy promising that such information wouldnever be sold.55 Although the case was resolved with thepurchase and destruction of the list by Toysmart’s major investor,its practical impact may be that privacy policies will now explicitlyprovide for the sale of customer information. Amazon and eBayadjusted their privacy policies in the aftermath of the Toysmartcase. Those policies now provide for the transfer of customerinformation to third parties in certain circumstances.5653. See O’Rourke, Property Rights, supra note 52; O’Rourke Shaping Competition,supra note 52; see also Dan L. Burk, The Trouble With Trespass, 4 J. Small &Emerging Bus. L. 27 (2000) (arguing for the adoption of a nuisance standard to addressunwanted access to websites).54. See Anthony Shadid, Crackdown Seen on Customer Databases, Boston Globe,Jan. 8, 2001, at C1.55. See Andrew B. Buxbaum & Louis A. Curcio, Note, When You Can’t Sell toYour Customers, Try Selling Your Customers (But Not Under the Bankruptcy Code), 8Am. Bankr. Inst. L. Rev. 395 (2000) (arguing that the Bankruptcy Code should beinterpreted to prohibit the sale of customer information gathered by a bankruptWebsite when the site promises not to transfer the information to a third party).56. See Tamara Loomis, Amazon Revamps its Policy on Sharing Data, N.Y.L.J.,Sept. 21, 2000, at 5 (describing Amazon’s change of policy from one promising not toshare information except potentially to other “trustworthy third parties” to one thatlists circumstances in which Amazon shares information, including if Amazon sells allor substantially all or its assets). eBay has also changed its policy to allow for thelimited transfer of its customer information:We have . . . made a policy change to comply with an evolving industrystandard in light of the Federal Trade Commission’s action with theToysmart website. Since that decision, many popular websites have modified
E-tailers also face difficulties in deciding with whom to dobusiness. While the Internet opens markets, it also potentiallysubjects the e-tailer to a range of unknown laws. For example,many countries consider their consumer protection laws to bemandatory. The content of those laws varies by country. Theopen question is whether e-tailers, particularly small businesses,can afford to educate themselves on all of the relevant law orassume the risk of ignorance. Another example is, of course, thecontroversy surrounding a French judge’s order to Yahoo! to blockInternet users in France from accessing United States based sitesthat sell Nazi memorabilia.57Technology may provide a partial solution to some of bothconsumers’ and e-tailers’ concerns. Technology like the Platformfor Privacy Preferences creates a standard for software that cangive Web surfers more information on Websites’ privacy policies aswell as more control over what personal information the viewertransmits to a site.58 Other technology permits firms to maintaingeographical boundaries even on the Internet.59 For example,their privacy policies to state that user information is an asset, and as such,they could sell, transfer, or rent that information to any third party. One ofthe most troubling aspects of such a policy is that it does not clarify how athird party could use your information. Our new policy describes the fewrare instances in which we would transfer your information to a third partyand the limited circumstances in which your information could be used.eBay Frequently Asked Questions about the Privacy Policy Revision, athttp://pages.ebay.com/help/basics/pprevision1-faq.html (last visited Jan. 14, 2002).eBay now also discloses what could happen to its customer information in the eventeBay is acquired or merged with another company:It is possible that eBay, its subsidiaries, its joint ventures, or anycombination of such, could merge with or be acquired by another businessentity. Should such a combination occur, you should expect that eBay wouldshare some or all of your information in order to continue to provide theservice. You will receive notice of such event . . . and we will require that thenew combined entity follow the practices disclosed in this Privacy Policy.eBay Privacy Policy, at http://pages.ebay.com/help/community/png-priv.html (lastvisited Jan. 15, 2002).57. See Mylene Mangalindan & Kevin Delaney, Yahoo! Ordered To Bar the FrenchFrom Nazi Items, Wall St. J., Nov. 21, 2000, available at 2000 WL-WSJ 26617563.58. See W3C Platform for Privacy Preferences Initiative: An Introduction to P3P,at http://www.w3.org/P3P/introduction.html (last visited June 23, 2001) (describinghow the tools following the P3P standard work and how they take action based on theuser’s privacy preferences).59. See Lisa Guernsey, Welcome to the World Wide Web. Passport, Please?, N.Y.Times Online, Mar. 15, 2001, athttp://www.nytimes.com/2001/03/15/technology/15BORD.html (discussing technologythat allows a vendor to determine where a customer is located physically and citing
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ROGER WILLIAMS UNIVERSITYLAW REVIEW
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ROGER WILLIAMS UNIVERSITYSCHOOL OF
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Identification StatementThe Roger W
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contract exclusion or disclaimer of
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and other laws of countries in whic
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Symposium and writes on this issue
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Indeed, the quotation contains the
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suggestive of a bill designed merel
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United States ought to adopt in lig
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the Supreme Court to reiterate in F
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United States Supreme Court quoted
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copying of “a work protected unde
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shall be null and void.65 Member st
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determining the fate of database pr
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The compilation of a database requi
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management information, including c
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one congressional witness noted:
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that were made after the initial te
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preferred language of many business
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the sui generis right mainly serves
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the Paris Convention for the Protec
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directly or indirectly.159 In other
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of resources that qualifies that po
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wish to encourage private lawsuits,
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contract.”185 While section 1405(
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The Directive will inevitably drive
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the process through which digital p
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the United States or the trade and
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patent law is the utilitarian ethic
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a work to be publicly identified as
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the United States, the power of the
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Theory one proposes to reward the a
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of intellectual property rights mus
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only such as are original, and are
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emedies set forth in section 1406.T
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eproduced, though there be no ingen
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the same, or substantially the same
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with respect to “patents of inven
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Because, in part of the joint reaso
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even by the plaintiffs today.86The
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statute: the “Limited Times” re
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head of power. It is not clear whet
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elationship of power between the Co
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history dealing with either provisi
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the parameters of the propertizatio
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the legislative power contained in
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negative pregnant that suggests tha
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scope of the Commerce Clause in the
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gave incentive for people to expres
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ejected this purported distinction
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talk, communicate or consume inform
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frameworks that will allow diversit
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that a monopolist should not seek t
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motivating force.While antitrust or
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unjustifiable anti-competitive cond
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his refusal to sell or license his
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defense and exploitation of the cop
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the information age there have been
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In response to Intel’s argument t
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Court of First Instance in concludi
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Page 134 and 135: for circumventing a technological p
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Page 180 and 181: Taking UCITA on the Road: WhatLesso
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Page 184 and 185: It is against this background that
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Page 220 and 221: Other Substantive IssuesThere are,
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Transactions Act).
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acts of copyright infringement.7 Un
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these rights.I. ISP LIABILITY FOR T
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Cubby, the court in Stratton Oakmon
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liability for third-party content.5
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network and removed the edition of
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subscribers’ conversations.84 Fur
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holder.92 Contributory liability ap
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and Klemesrud on the counts of dire
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eport, the White Paper on Intellect
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imposed ISP liability both in insta
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any infringing material either upon
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provider liability, the European Co
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of a defamatory statement.While saf
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defamation.184 One case that illust
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material that appears questionable
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FBI’s Carnivore: Is the Governmen
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and the legal limits of government
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II. CONSTITUTIONAL ANALYSISA. Const
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application developed in Katz v. Un
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Amendment protections.50Substantial
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communicating over the Internet pos
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court will likely, as it has often
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unconstitutional.81 Although CALEA
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data attributable to the target sus
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FBI facility for subsequent examina
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EPCA Section 2518 provides that upo
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The FBI has stated that its use of
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provision,143 but judging from the
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