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Developments Of Note
FTC Aims To Define e-Mail Primary Purpose Under CAN-SPAM Regs.
The Federal Trade Commission (FTC) has proposed a rule setting a tri-category framework for determining the “primary purpose” of an electronic message under the federal Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act). 69 Fed. Reg. 50091 (August 2004). The proposed rule uses the act's definition of a “transactional or relationship message” to define the key term “transactional or relationship content.” The inclusion of such content in a message is used in the proposed regulation to determine the “primary purpose” of an electronic message.
The proposed rule is available at www.ftc.gov/os/2004/08/canspamfrn.pdf.
Federal Judiciary Proposes New e-Discovery Rules
Judicial Conference's Advisory Committee on the Federal Rules has proposed new rules covering electronic discovery. The proposed amendments address five related areas:
- Early attention to issues relating to electronic discovery, including the form of production, preservation of electronically stored information, and review of electronically stored information for privilege;
- Discovery of electronically stored information that is not reasonably accessible;
- The assertion of privilege after production;
- The application of Rules 33 and 34 to electronically stored information; and
- A limit on sanctions under Rule 37 for the loss of electronically stored information as a result of the routine operation of computer systems.
A summary of the proposed rules is available at www.uscourts.gov/rules/comment2005/CompleteBrochure.pdf.
FCC Adopts Rules Outlawing Wireless Spam
The Federal Communications Commission (FCC) adopted anti-spam rules applicable to messages sent to wireless devices. In re Rules and Regulations Implementing the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, No. FCC 04-194 (Aug. 4, 2004), to be codified at 64 C.F.R. '64.100 (“Restrictions on Unwanted Mobile Commercial Service Messages”). The rules become effective 30 days after publication in the Federal Register. The rules require an opt-in approach with respect to commercial e-mails sent directly to wireless device e-mail addresses. The “opt-in” defined in the rules includes a special definition of the term express prior authorization, which is more rigid than the definition of “affirmative consent” under the CAN-SPAM Act provisions that apply to nonwireless messages. The new wireless-spam rule generally applies if the sender knows the e-mail address is a wireless device's or the e-mail address domain name is contained on a list of wireless-address domain names that the FCC will maintain. The FCC rules are available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-194A1.pdf.
Filing An Electronically Signed Document
Isn't An e-Sign Transaction
Between Consenting Parties
County clerks in Texas are not obligated to accept for filing in the land records paper print-outs of real-estate documents signed or executed electronically. Texas Attorney General Opinion No. GA-0228 (Aug. 5, 2004). The attorney general responded to an inquiry from a county clerk concerning requests to accept for filing in the land records paper print-outs of real-estate documents that were executed electronically. The attorney general concluded that the filing of such documents was not a “transaction” entered into by “consenting parties,” and so the filing was not required by the provisions of the Federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. '7001 et seq., or the Texas enactment of the Uniform Electronic Transactions Act, Ch, 96 of the Tex. Bus. & Comm. Code.
Julian S. Millstein Edward A. Pisacreta Jeffrey D. Neuburger
FTC Aims To Define e-Mail Primary Purpose Under CAN-SPAM Regs.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.