States continue to focus their investigation and enforcement efforts on privacy issues, with no sign that the focus will shift anytime soon. The most recent example is a $17 million settlement between 37 states (and D.C.) and Google related to Google’s use of tracking cookies on Safari browsers. For more information about this case and
BBB Accountability Program Reminds Advertising Industry to Act Now to Comply with Enhanced Notice
In its first ever compliance warning, the Online Interest-Based Advertising Accountability Program Council (“Accountability Program”) noted that many website operators are omitting notices of data collection for online behavioral advertising (“OBA”) on their websites where third parties, such as ad networks, are not able to provide notice without the website operator’s assistance. Such notices are required under the Self-Regulatory Principles for Online Behavioral Advertising (“OBA Principles”).
In an effort to encourage compliance, the Council has delayed enforcement against first parties that fail to provide the required enhanced notice beginning until January 1, 2014.
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Do-Not-Track Working Group: Survey Shows Dwindling Support
The future of the Do-Not-Track working group remains unclear, according to a recent survey taken among its participants. Forty-three of the 100 or so working-group participants submitted responses to the survey, which proposed five paths for the group moving forward.
According to the survey, 17 participants voted that they have “no confidence” in the group and that all work should be discontinued. Some of the comments described the proceeding as “so flawed [that] it’s a farce.” Others called the progress made to date, “shameful.” Other participants remained somewhat more hopeful; though, ideas on how to achieve a more meaningful Do-Not-Track standard varied. Twenty-six participants voted against continuing to stay on the current path and resolving the remaining open issues as outlined in the proposal. The remaining proposals, which garnered the most votes, recommended splitting up the working group’s focus on establishing a technical means for sending a Do-Not-Track signal and establishing compliance standards for when a company receives a signal.
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Legislative Roundup: CA Lawmakers Pass Three Privacy Bills
California is once again seeking to set the trend in privacy legislation, having recently passed three bills related to data privacy. One of those bills, AB 370, would mandate operators of websites and mobile apps to include disclosures in their privacy policies on how they respond to “do not track” signals or other consumer choice
DMA Not a Supporter of “Reclaim Your Name” Campaign
Back in June, FTC Commissioner Julie Brill unveiled an initiative called, “Reclaim Your Name” at the Computer Freedom and Privacy Conference. Her proposed initiative is directed to the big data industry and calls on data brokers to give consumers more control over their personal data. According to Commissioner Brill, Reclaim Your Name would “empower the consumer to find out how brokers are collecting and using data; give her access to information that data brokers have amassed about her; allow her to opt-out if she learns a data broker is selling her information for marketing purposes; and provide her the opportunity to correct errors in information used for substantive decisions – like credit, insurance, employment, and other benefits.”
Commissioner Brill followed up her remarks at the Conference with an op-ed piece in the Washington Post earlier this month, again demanding transparency from data brokers. In her op-ed, Commissioner Brill likened the efforts of data brokers who collect data on surfing habits and app usage to the type of information the NSA was collecting. She also opined that “personal data could be — and probably are — used by firms making decisions that aren’t regulated by the FCRA but still affect users’ lives profoundly” and that these decisions include whether consumers are too risky to do business with or aren’t right for certain clubs, dating services, schools or other programs.
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FTC Issues New COPPA Guidance Focusing on Ad Networks
It’s now been almost a month since the revised COPPA Rule went into effect July 1, 2013. Earlier this year, the FTC issued new guidance on how to comply with the revised Rule. As part of its new guidance, the FTC provided a detailed set of FAQs.
The FTC is planning to make additional revisions to their FAQs, with these revisions focusing on the obligations of ad networks. Specifically, the FTC explains in what circumstances an ad network is deemed to have “actual knowledge” that it has collected personal information from users of a child-directed site (see D.10, D.11, D.12), and the obligations of ad networks after they discover that they have been collecting personal information via a child-directed website (see K.2). The revised FAQs also relates traditional enforcement policy to the context of a button within an app that automatically opens an email program or social network. Providing the facility for a child to share personal information is just as problematic as if the operator was collecting that information itself. Thus, verifiable parental consent is required when permitting children to share content that may contain personal information – such as a painting combined with a field that allows for free expression.
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NLRB GC’s Office Says Employers May Not Unilaterally Implement Social Media Guidelines
The NLRB’s General Counsel’s office recently released its latest Advice Memorandum on social media, publicizing its position that employers may not unilaterally implement social media guidelines without first bargaining with unions. In addition, the Memorandum determined that a rule prohibiting photographs or videotapes of the employer’s premises to also be unlawful, finding that such a
The Risks of ‘Native Advertising’
Kim Kardashian is notorious for setting Twitter trends with her fashion-forward tweets. But would a consumer buy the same product knowing she was paid up to $20,000 for tweeting it?
The term “native advertising” refers to when an advertiser masks ads as editorial content in an effort to market more seamlessly to consumers. The intent behind this practice is to make advertisements less intrusive and to associate a brand with an experience.
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Congressmen Propose the ‘We Are Watching You Act’
Television broadcasters have long been able to track their shows’ popularity. But a new bill introduced in Congress last week aims to regulate technology that would go even farther by using actual cameras and microphones on TV set-top boxes or DVRs to record viewers’ reactions to advertisements.
On June 13, the We Are Watching You Act (H.R. 2356) was introduced by Representatives Walter B. Jones (R-N.C.) and Michael Capuano (D-Mass.). That bill, if enacted, would require companies to obtain viewer consent before using surveillance devices embedded in set-top boxes and DVRs to track people’s moods and reactions. The cameras and microphones would send cable companies data on the audience’s activities, including comments, facial expressions, food consumption, and general moods, as well as their age and gender. According to Congressman Capuano, such technology is not yet in use–last year, the U.S. Patent and Trademark Office rejected one company’s patent application for such a system, and other companies have also reportedly explored similar technology. But the two lawmakers hope to put regulations in place preemptively, informing consumers and allowing them to opt out of such surveillance should it become a reality. Said Congressman Capuano, “[t]his may sound preposterous, but it is neither a joke nor an exaggeration. These DVRs would essentially observe consumers as they watch television as a way to super-target ads. It is an incredible invasion of privacy.”
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FTC Chairwoman Ramirez Says Do-Not-Track System is ‘Long Overdue’
Earlier this week, FTC Chairwoman Edith Ramirez spoke to members of the ad industry, urging them to provide “effective and meaningful privacy protection” to consumers with respect to online tracking. Chairwoman Ramirez’s position reportedly surprised, and even frustrated, some attendees by implying that the Digital Advertising Alliance’s self-regulatory program does not do enough in