Washington's Privacy Tango

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Washington's Privacy Tango

  1. + Washington’s Privacy Tango Searching For the Elusive Consensus March 13, 2012Bennet Kelley
Internet Law Center
  2. + n  Founder of Internet Law Center in Santa Monica n  Former Co-Chair of Cal. Bar Cyberspace Committee n  Host of Cyber Law & Business Report on WebmasterRadio.fm (Weds at 10-11AM PT) n  Publisher of Cyber Report newsletter which won top prize at 2011 LA Press Club Awards and named a top source for internet law
  3. + This Debate Is Not New n  OK, Not Quite That Old n  Since Advent of Internet n  What Has Changed n  Reach/Breach n  Acceptance of Some Regulation n  Number of Players and Technologies Involved
  4. + 1999: SPOTLIGHT ON ONLINE PROFILING n  1999: FTC Conference n  1999: Network Advertising Initiative launched to stop regulation n  2000: Report to Congress
  5.  •  Commends NAI but . . .•  [Recommends] legislation that would set forth a basic level of privacy protection for all visitors to consumer-oriented commercial Web sites with respect to profiling. –  Basic standards of practice governing the collection and use of information online for profiling, and provide an implementing agency with the authority to promulgate more detailed standards –  [Including] authority to grant safe harbors to self-regulatory principles which effectively implement the standards of fair information practices articulated in the legislation and subsequent rulemaking.
  6. + 2001-2006: Other Priorities •  Spam (2003) •  Spyware (2004)
  7. + 2007-2009 Dancing Over Self-Regulation •  2007: FTC Releases Self-Regulatory Principles for Behavioral Targeting •  2008: Industry Pushes Back •  2009: Leibowitz Warns Industry Action is Coming •  Industry Responds with IAB, DMA, AAAA Guidelines
  8. + Emergence of the Creepiness Factor “Is it legal? Probably. Do I think its a good idea and it makes sense? No. I dont think it passes the creepy factor, and this market isnt ready for stuff that doesnt pass the creepy factor,” “We are not in a place where we an do dumb things and stupid things like that, even if theyre effective.” Dave Morgan. Tacoda Founder on NebuAds.
  9. + 2009-2011: Lawyers of the Roundtable •  Tenth Anniversary of Online Profiling Conference •  Industry Still Fighting Regulation •  Complexity Increases •  . . . Oh and there’s that Social Networking thing too.
  10. + Personal Data Eco-System Any questions????
  11. + FTC Privacy Report Our report and law enforcement action send a clear message to industry: despite some good actors, self-regulation of privacy has not worked adequately and is not working adequately for Americans consumers. We deserve far better from the companies we entrust our data to, and industry, as a whole, must do better. FTC Chairman Jon Leibowitz
  12. + DOC Privacy Report n  Endorses baseline commercial data privacy principles that would fill any gaps in existing U.S. law; n  Safe harbors against FTC enforcement for practices defined by baseline data privacy or self-regulatory codes; n  Limited rulemaking authority over certain baseline fair information privacy practices principles if it is established that market failures require prescriptive regulatory action; and n  National Data Breach Standards
  13. + Market Reaction n  Browser Wars n  Privacy Competition n  Industry Begins Policing Itself
  14. + Its Back . . .
  15. + Meanwhile . . . n  No Consensus on Capitol Hill n  Other Internet Battles n  Net Neutrality n  SOPA
  16. Obama Bill of Rights •  Individual Control •  Transparency •  Respect for Context •  Security+ •  Access and Accuracy •  Focused Collection and •  Accountability
  17. + Half Empty •  Relies on self-regulatory principles and passage of comprehensive privacy legislation – neither of which is on the horizon. •  Little different that where we were in 1999
  18. + Half Full •  Jump starts moribund legislative process •  Got industry backing of do-not track on browser level •  Industry is engaging in self-regulation and enforcement already •  Substantial movement in industry’s approach since 1999
  19. + Internet Law Center 100 Wilshire Blvd., Suite 950, Santa Monica, CA 90401 (310) 452-0401 bkelley@internetlawcenter.net www.internetlawcenter.net

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