It’s a new year, and change is in the air. Although the holidays are over, some groups in Washington are hanging on to their wish lists with the hopes that President Obama will grant their desires.
Over the past few months, Obama has sent agency review teams into dozens of government offices, ranging from the Pentagon to the EPA to the FTC. These teams are dissecting agency initiatives, poring over budgets and reviewing functionality. Many lobbying groups see this time of transition as a prime opportunity to achieve desired changes by gaining the ear of the new administration.
In fact, in December, leading privacy and consumer groups met with leaders of the FTC review team to spread the message that the FTC has allowed industries to self-regulate online privacy practices – to the detriment of consumers – for far too long. Privacy groups are not alone in their concern. Obama himself said during his campaign that “[d]ramatic increases in computing power, decreases in storage costs and huge flows of information that characterize the digital age bring enormous benefits, but also create risk of abuse. We need sensible safeguards that protect privacy in this dynamic new world.” He committed to “strengthen the privacy protections for the digital age and to harness the power of technology to hold government and business accountable for violations of personal privacy.”
During their meeting with the FTC agency review team, privacy groups stressed a need for better (more?) regulation of targeted online marketing, oversight in the data broker industry, and privacy policies for medical information, just to name a few. Susan Grant, director of consumer protection at the Consumer Federation, called the Network Advertising Initiative’s behavioral advertising self-regulatory code of conduct “deceptive on its face,” and called for the FTC to establish a “Do Not Track” registry, similar to the popular “Do Not Call” registry for telemarketing. In support of increased oversight of data brokers, Beth Givens of the Privacy Rights Clearinghouse cited numerous complaints from consumers about use of their personally identifiable information by companies in violation of stated privacy policies.
In addition to Obama taking office, a Democratic shift in Congress has the potential to lead to increased regulation. In fact, two senators (Markey (D-Mass.) and Dorgan (D-N.D.)) have already expressed an interest in introducing Internet privacy legislation that would likely outlaw behavioral targeting, cookies and “deep packet inspection.” In addition, a bill currently pending in Congress would expand and enhance the authority of the FTC, possibly increasing the number of FTC litigations.
What does this mean?
Online privacy issues are just the tip of the iceberg. The combination of the financial crisis (which many blame on self-regulation), and a new Democratic administration and Congress in Washington, will likely lead to both increased regulatory action and legislation in several areas affecting advertising and marketing, including:
- Increased scrutiny on mergers (note the recent demise of the Google and Yahoo merger)
- Stronger antitrust enforcement
- Sweeping Internet privacy legislation and an end to self-regulation
- A ban on advertising food to children: This is a hot topic and politicians will likely look to regulations of tobacco advertising as a basis for such a ban
- An end to drug companies’ direct-to-consumer advertising: The United States is one of two countries left around the globe that allows prescription consumer drug advertising. Many politicians feel that it adds to the cost of medicine and health care
- An end to the corporate tax deduction for advertising: You can expect the government to be looking at any and every way possible to generate tax dollars without raising the income tax
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On January 6, 2010, The Weatherproof Garment Company (a division of David Peyser Sportwear) put up a billboard (actually two, a diptych) in New York's Times Square. The advertiser used an Associated Press (AP) licensed photo of President Barack Obama during his visit to China's Great Wall back in autumn wearing a Weatherproof jacket. Legal pundits have long discussed and opined whether the First Amendment trumps the commercial product endorsement (commercial free speech being more limited than free speech per se). One thing is VERY clear--the AP's contract required that "the necessary clearance" be obtained prior to the Weatherproof Garment Company's use of the image. Weatherproof president Freddie Stollmack blandly told the media he had not bothered to obtain the clearance. The White House legal team has already been in contact with both AP and Weatherproof's parent company.