March 2011

I attended the ABA’s Antitrust Law Spring Meeting the last two days.  What struck me the most was the increased prominence of data and privacy as factors in analysis of markets and competition in antitrust law.  This was the topic in the Chairman’s Showcase session on Thursday.  Julie Brill, the FTC Commissioner, perhaps made the point the best.  She explained that if privacy is becoming a competitive differentiator (e.g., consumers are persuaded to use one service over another because the chosen service has better privacy practices), then privacy is clearly a non-price factor in competition law analysis.  Commissioner Brill provided an overview of the FTC’s report on consumer privacy and emphasized three parts of the report: privacy by design, transparency and choice.  She also emphasized that the FTC was focused on the fact that technical approaches to privacy solutions could impact competition in the market.  However, her view was that standards bodies would mitigate against this concern.  Ken Anderson, Assistant Commissioner for Privacy in Ontario provided an explanation of privacy by design.  Much of the information from his presentation is readily available in a useful video presentation at  www.privacybydesign.ca

HP demonstrated an automated tool that it is testing as part of its privacy by design implementation which looked impressive. The HP “Accountablity Model Tool” sends records and reports to the HP privacy office as products are developed.  Google introduced the audience to the “data liberation front” which enables users to extract their data from Google products – see www.dataliberation.org.Continue Reading Privacy increasingly a factor in antitrust/competition law analysis

At a hearing organized by the European People’s Party on March 31, EU Commissioner Reding lifted the veil on some of the business friendly measures the European Commission intends to propose in the revision of the Data Protection Directive.  While remaining vague on how many of these measures will be achieved, Ms. Reding highlighted five priorities:Continue Reading EU Commissioner Reding expresses views on Data Protection Directive reform

Today, the Federal Trade Commission announced that it has accepted, subject to final approval, a consent agreement from Google that would resolve the Commission’s allegations that Google engaged in deceptive trade practices when it launched its “Buzz” social networking service in February 2010. The FTC’s complaint alleges, among other things, that the launch violated Google’s  privacy policy in

A few months ago, the Obama Administration introduced its National Strategy for Trusted Identities in Cyberspace (NSTIC), an ambitious proposal to implement public-private partnerships to implement a new mechanism for identity verification and information sharing online.  The plan has been controversial.  Although there have been many legitimate criticisms of the

As we’ve described in this recent article, the past year has witnessed a surge in privacy litigation that shows no signs of easing.   Many of these suits involve allegations that defendants have used Flash local shared objects (“Flash cookies”) for the purpose of tracking Internet users’ browsing activity. Flash cookies differ from traditional browser cookies in

United States District Judge Denny Chin’s decision [PDF] denying final approval of the Google Books Settlement included an interesting discussion of privacy issues that were raised by the proposed settlement agreement [PDF].  The decision may draw attention to the emerging privacy issues surrounding reading on computers and other Internet-enabled devices, such as popular e-Readers.

The Google Books settlement agreement would have resolved a copyright suit filed against Google by authors and publishers, parts of whose books Google had made available through its search engine without first securing copyright permission.  Under the agreement, Google would, among other things, have been permitted to (1) continue to digitize books, (2) sell subscriptions to an electronic books database, (3) sell online access to individual books, and (4) sell advertising on pages from books.  

A number of consumer groups — including Consumer Watchdog and EPIC — had filed briefs in opposition to the settlement arguing that allowing Google to engage in these activities raised privacy concerns.  Consumer Watchdog contended that the agreement would give Google “the ability to collect nearly unlimited data about the activities of users of its Book Search and other programs, including users’ search queries, the identity of books a particular user reads, how long that reader spends on each book, and even what particular pages were read.”  The court acknowledged that the privacy concerns about Google Books “are real.”  However, Judge Chin noted that the agreement contained privacy protections for the authors and publishers that comprised the class.  Judge Chin did not focus on the privacy interests that Consumer Watchdog and others had raised with respect to users of Google Books. Continue Reading Court Cites Privacy Concerns in Rejecting Google Books Settlement

Just a week after the Obama Administration announced its support for comprehensive privacy legislation in testimony before the Senate Commerce Committee, Senator John Kerry (D-Mass.) has released a draft bill that attempts to respond to the Administration’s call for broad baseline privacy protections for consumers.   Kerry’s bill, which is co-sponsored by Senator John McCain (R-Ariz.) is still

Yesterday, Senator Jay Rockefeller announced that the Senate Committee on Commerce, Science & Transportation, which he chairs, will hold a hearing on cybersecurity issues on March 29.  This is not a new issue for Senator Rockefeller or the Senate Commerce Committee, which approved cybersecurity legislation during the 111th Congress.  The Senate Homeland Security Committee had