Comments on: Best and Worst Internet Laws

By: Daniel Castro

Daniel Castro — Mon, 18 Jun 2007 21:57:51 +0000

Nice list. I thought others might be interested in this paper ITIF just released on the Internet Tax Freedom Act (#2 on your list). It goes into the legislation’s history in depth and argues for making it permanent (since it is set to expire in Nov. 2007). Here is the link:

http://www.itif.org/files/ITFA.pdf

By: Bruce Boyden

Bruce Boyden — Fri, 16 Feb 2007 22:07:27 +0000

Orin, to take one example among many, how does an electronic communication service — not a service provider, but the service itself (e.g., Internet access) — engage in “storage” for purposes of backup protection? (18 U.S.C. s 2510(17)(B).) Does the Internet decide when to back things up? And why is “electronic storage” the term used for something far more limited than electronic storage anyway? Given that “electronic storage” means, essentially, storage during transit, and that 2701 is limited to access of communications in “electronic storage,” how is what is prohibited under 2701 any different from what is a prohibited “acquisition” under the Wiretap Act, at least under the interpretation embraced by the en banc First Circuit in Councilman? Why are behavior-based exceptions (dependent on the purpose of the interception) excluded from the definition of “device” rather than exceptions to the prohibition on interception? That seems unnecessarily confusing. And how come computers haven’t been added to the “business use” exception, or are they “telephone” or “telegraph” equipment? Is “a facility through which an electronic communication service is provided” something less than all data machines attached to the phone network and Internet, and if so, what defines the subset of facilities subject to 2701’s prohibition? Why do ISPs get blanket authority to hack into *other* ISPs under 2701(c)(1), which effectively immunizes (for purposes of 2701) “the person or entity providing *a* [not "the" or "such"] wire or electronic communications service”? And how come the sender of a message can hack into the recipient’s computer (or routers along the way) under 2701(c)(2) to retrieve his or her message? OK, that was much more than one example, but you get my drift.

By: Orin Kerr

Orin Kerr — Fri, 16 Feb 2007 20:39:09 +0000

Funny, Eric, I would say that ECPA is the best Internet law written. It’s really extremely clever, and the only reason it is hard to understand today is that Congress left out the suppression remedy. But the basic statute is a remarkable achievement.

I’m also not sure I understand why the Unlawful Internet Gambling Enforcement Act of 2006 is so bad. My understanding is that it has let to a very significant drop in Internet gambling, which is exactly what it was designed to do.

By: Bruce Boyden

Bruce Boyden — Fri, 16 Feb 2007 18:40:15 +0000

Eric, great idea and great list. I agree with the top 6. But I would quibble with most of the rest of it, particularly your two “best” laws.

On the ECPA, perhaps this makes it even worse, but some Congresspersons *were* envisioning its application to the Internet, at least to e-mail; there are statements to that effect in the legislative history. The problem with the ECPA is, as you note, its drafting: broad prohibitions cabined by limiting definitions (some with multi-part tests) and overlapping, vague, broad exceptions. And it just gets worse every time it’s amended, which is frequently.

Also, if you want to be confused by drafting, try figuring out how you’re supposed to bring an in rem suit under the ACPA.