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Can the Law Keep Up with Tech? Can Self Regulation Help?

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Presentation for a recent discussion on the role of self-regulation in defining online privacy frameworks. I moderated this panel discussion at the ABA\'s 2011 Annual Meeting which was held in Toronto, Canada. Our all star panel - FTC Cmr. Brill, Canada\'s Privacy Stoddart, Stu Ingis and Paolo Balboni.

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Can the Law Keep Up with Tech? Can Self Regulation Help?

  1. 1. Can the Law Keep Up with Technology? Can Self Regulation help?ABA Antitrust Section - Practical Privacy Series ABA Annual Meeting Toronto, Canada August 6, 2011
  2. 2. Our Panelists•  Commissioner Julie Brill – U.S. Federal Trade Commission•  Privacy Commissioner Jennifer Stoddart – Office of the Privacy Commissioner of Canada•  Dr. Paolo Balboni – Director, European Privacy Association•  Stuart Ingis – Partner, Venable LLP•  Moderator – Saira Nayak, Nayak Strategies
  3. 3. Our TopicCan Self Regulation help?Let’s examine the following questions:1.  Is Self Regulation is an essential part of a consumer data protection framework?2.  What should Self Regulation look like in the consumer data context?We will start our presentation by identifying theunderlying theories and key elements of self-regulation.
  4. 4. Key Elements of Self Regulation•  Clear & Consistent Standards – defined by legal/regulatory framework or voluntary codes of conduct•  Accountability – internal & external•  Accountability Agents/3rd Party Audits•  Individual User Access•  Safe Harbor provisions – to incentivize participation•  Consumer Education
  5. 5. AccountabilityOrganizations should be accountable forcomplying with measures that give effect to thefair information principles.• Accountability is part of APEC, European,OECD & PIPEDA frameworks• Art. 29 WP guidance – to ensure thatcontrollers are more generally in control and inthe position to ensure and demonstratecompliance with data protection principles inpractice.• CIPL Accountability– 5 essential elements
  6. 6. Self vs. Co RegulatorySelf Regulatory Organizations-  Cinematic Content – MPAA Rating System-  Children s Advertising & Marketing e.g. CARU,ICTI s Toy Marketing Guidelines Europe-  Online Advertising in the US e.g. MMAGuidelines, ANA & NAI GuidelinesCo Regulatory Organizations-  Online Advertising in Europe-  OBA Notice & Choice – DAA scheme, browser-based choice (Chrome, Explorer, Firefox)
  7. 7. OBA Notice & Choice
  8. 8. Digital Advertising Alliance (DAA)•  Self regulatory program for online behavioral advertising•  www.AboutAds.Info
  9. 9. Self-Regulatory Principles for Online Behavioral Advertising•  Education•  Transparency•  Consumer Control•  Data Security•  Material Changes to Existing OBA Policies and Practices•  Sensitive Data•  Accountability
  10. 10. Advertising Option Icon The Advertising Option Icon and accompanying language appears in or near online advertisements or on Web pages where data is collected and used for behavioral advertising.•  The Icon indicates adherence to the Principles.•  By clicking on the Icon, consumers can link to: –  a clear disclosure statement –  an easy-to-use opt-out mechanism
  11. 11. In Ad Notice
  12. 12. Publisher Notice
  13. 13. DAA Consumer Choice Mechanism•  The Consumer Opt-Out Page www.AboutAds.info gives consumers the ability to conveniently opt- out of some or all participating companies online behavioral ads, if they choose•  Organizations can now register to participate and be listed on the Consumer Opt-Out Page
  14. 14. CBBB and DMA Commence Accountability Programs•  CBBB and DMA have complementary Accountability Programs to: –  Monitor the marketplace externally for data that suggests non-compliance with key notice and choice requirements –  Follow-up directly with non- complying entities –  Report non-compliance and refer uncorrected non- compliance to government
  15. 15. Trustmarks
  16. 16. EU Trustmarks•  Action 17 EU Digital Agenda – conduct an impact assessment for EU online trustmarks in 2011.•  Art. 29 Working Party Opinion 3/2010 – suggests development of certification programs or seals as a way to implement the Accountability principle.
  17. 17. Trustmarks Electronic labels or visual representationsindicating that an e-merchant has demonstrated its conformity to standards regarding, e.g., security, privacy, and business practice. =
  18. 18. Trustmark Organizations TMOsTrustmark Organizations (TMOs) areindependent entities which provide atrustmarks to online or e-merchants.
  19. 19. Panel Discussion
  20. 20. Audience Q & A

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