+ 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
+ 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
+ 1999: SPOTLIGHT ON ONLINE
PROFILING n 1999: FTC Conference n 1999: Network Advertising Initiative launched to stop regulation n 2000: Report to Congress
• 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.
+ 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
+ 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.
+ 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.
+ 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
+ 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
+ Meanwhile . . .
n No Consensus on Capitol Hill n Other Internet Battles n Net Neutrality n SOPA
Obama Bill of Rights •
Individual Control • Transparency • Respect for Context • Security+ • Access and Accuracy • Focused Collection and • Accountability
+ 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
+ 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
+ Internet Law Center 100
Wilshire Blvd., Suite 950, Santa Monica, CA 90401 (310) 452-0401 firstname.lastname@example.org www.internetlawcenter.net