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The Worldwide Web Consortium’s Tracking Protection Working Group concluded a three-day international stakeholder meeting in Amsterdam on October 5 without reaching consensus on certain key issues concerning a global do-not-track standard.  There are reportedly three major unresolved questions:  (1) what the default setting should be—whether do not track should be turned on or off

A new bill introduced by Rep. Ed Markey, titled the Mobile Device Privacy Act, would require mobile device sellers, manufacturers, service providers, and app offerors to disclose to consumers the existence of any monitoring software.  Monitoring software is defined as “software that has the capability to monitor the usage of a mobile device or the

Twitter has announced that it will appeal a New York state judge’s ruling that the company must hand over an Occupy Wall Street protestor’s tweets to the Manhattan district attorney.  The defendant was charged with disorderly conduct for his participation in a protest march in October 1, 2011.  Following that incident, the district attorney subpoenaed Twitter for the defendant’s tweets over several months in the fall of 2011.  The defendant unsuccessfully challenged the subpoena in trial court, and Twitter is taking up the appeal.    

The trial court judge found that the Fourth Amendment did not apply to the government’s subpoena.  The defendant had no privacy interests in his tweets, the judge held, because of the public nature of the Twitter platform.  Pointing out that the “very nature and purpose of Twitter” is to share messages with a broad online audience, the judge concluded that the “defendant’s contention that he has privacy interests in his Tweets . . . [is] without merit.”

Continue Reading Twitter to Appeal NY Ruling that It Must Hand over Occupy Protestor’s Tweets

Two reports have recently been released that look at consumer perceptions of online privacy issues and examine user tracking practices on popular websites.

TRUSTe Privacy Index

TRUSTe released its Privacy Index for the second quarter of 2012, which measures consumer confidence in their online privacy.  The numbers show that consumers are concerned about web privacy issues and make decisions based on perceptions of companies’ privacy practices.

Consumer concern and mistrust about online privacy are up from Q1.  In the latest Privacy Index, 91% of U.S. adults say they worry about their privacy online (versus 90% in Q1), and 53% say they do not completely trust businesses with their information (versus 41% in Q1). 

The percent of adults that say privacy issues impact their buying decisions has remained steady.  88% of adults say they avoid companies that they believe do not protect their privacy.

Continue Reading Two Recent Privacy Reports on Consumer Confidence and Website Tracking Practices

Yesterday, the FTC held a public workshop titled “In Short: Advertising & Privacy Disclosures in a Digital World.”  The workshop explored whether and how the FTC should revise its 2000 guidance concerning advertising and privacy disclosures in the new era of online and mobile technology.

This post will highlight the morning workshop sessions on usability research, cross-platform advertising disclosures, and social media advertising disclosures.  A second post will recap the afternoon’s discussions on mobile advertising and privacy disclosures.
Presentation on “Usability Research.”  After introductory remarks by Commissioner Ohlhausen, Jennifer King, a Ph.D. candidate at the University of California-Berkeley, briefly presented on “usability research,” an emerging body of research that examines the qualitative aspects of what disclosures users read—and what they ignore—in the online space.  One of the overarching findings she discussed is that Internet users are goal-oriented and will largely focus only on those items that are necessary for completing the task at hand.  Building upon this principle, King proposed that relevant disclosures should be part of the user’s task flow (for example, built into the checkout process) for maximum visibility.  King’s presentation can be viewed on her blog.
Panel 1:  Universal and Cross-Platform Advertising Disclosures.  After her presentation, King joined the first panel of the day on “Universal and Cross-Platform Advertising Disclosures,” at which moderator Michael Ostheimer asked questions aimed at determining whether — and how —  the 2000 Dot Com Disclosures guidance should be updated.  A large part of the discussion centered on the use of links to make disclosures in online advertisements and on e-commerce sites.  Three of the panelists — Sally Greenberg, Executive Director of the National Consumers League, Paul Singer, Office of the Texas Attorney General, and King — questioned whether generic links (titled “Disclosure,” for example) are sufficient to put consumers on notice that important terms and conditions attach to the use or purchase of a product.  
Other panelists more broadly questioned the utility of guidelines that focus on things like the use and formatting of hyperlinks and the design of banner ads.  Comments from Linda Goldstein,  Promotion Marketing Association, and Steve DelBianco, NetChoice, tended to suggest that the Dot Com Disclosures guidance is outdated and a more flexible approach is appropriate.  Singer, however, championed the guidance’s focus on clarity and prominence, saying these are valuable principles for companies hoping to avoid regulatory scrutiny.
Panel 2:  Social Media Advertising Disclosures.  The second panel addressed “Social Media Advertising Disclosures.”  The FTC’s blogger endorsement guidelines were discussed first, and the panelists were largely in agreement on Moderator Richard Cleland’s hypotheticals, concluding as a general matter that if a blogger receives an incentive to review or recommend a product, the blogger should disclose that connection at the same time and in the same space as the endorsement.  
When the conversation turned to advertising disclosures on social media platforms like Twitter, the panelist views varied.  A debated issue was how an endorser using Twitter should disclose an arrangement with a company within the platform’s space constraints.  Robert Weissman, President of Public Citizen, said the use of the #spon hashtag — a convention in the Twitter sphere — was not enough, because average consumers do not understand its significance.  Stacey Ferguson, a representative of the blogging community, agreed that a plain language approach is the solution, even at the cost of valuable real estate.  But Malcolm Faulds, a member of the Word of Mouth Marketing Association (but speaking on behalf of BzzAgent, Inc.), disagreed, noting that WOMMA recommends the use of Twitter hashtags like #spon to its members.
Ferguson then suggested that the platform itself should be responsible for enabling users to make ad disclosures in a meaningful and clear way.  For example, she noted that Twitter could change the color of tweets that featured advertising.  Other panelists, however, disagreed.  Susan Cooper, Advertising and Product Counsel at Facebook, pointed out the near-impossibility of the Facebook platform to distinguish when a user “likes” a product on her own, and when a user “likes” a product because she has an incentive to do so.  Weissman echoed this sentiment, noting that the “duty lies with the advertiser, not with the platform.”
Although the discussion was based largely on hypotheticals, larger themes developed.  Weissman took the position that advertising disclosure guidelines should not cater to the constraints of a specific platform.  “Advertising has to adapt to the existing law, not the other way around,” he argued.  Cooper, however, emphasized that social media advertising disclosures cannot be one-size-fits-all.  “Social media is an umbrella term used broadly to identify several different types of platforms.”  Cooper cautioned that despite the use of a single term to describe the platforms, “the way that users are consuming social media is very different.”  
Susan Shook, counsel at Procter & Gamble, suggested that a more flexible approach to advertising disclosures be considered, one that would permit endorsements in an individual’s own words and would allow advertisers to transition easily to new media outlets

This post will highlight the morning workshop sessions on usability research, cross-platform advertising disclosures, and social media advertising disclosures.  A second post will recap the afternoon’s discussions on mobile advertising and privacy disclosures.

Continue Reading What Happened at the FTC Advertising and Privacy Workshop? (Part 1 of 2)

Judge Feess of the Central District of California recently rejected Carrier IQ’s attempt to litigate in federal court a class action concerning whether Carrier IQ’s software, installed on a wide range of smart phone devices from many different manufacturers running on various wireless networks, violated California law.  Judge Feess remanded the case to state court

Lawmakers in Maryland and Illinois have introduced bills that would prohibit employers from requiring job applicants or employees to grant access to their social networking accounts.  The bills arose from reports that employers have impliedly or explicitly required access to social networking accounts as a condition of hiring or employment.

A few bills have been

The White House released a report today containing its “Consumer Privacy Bill of Rights,” referring to the new privacy framework as a “comprehensive blueprint to protect individual privacy rights and give users more control over how their information is handled.”  The report is entitled “Consumer Data Privacy in a Networked World: A Framework for Protecting

Judge Mary McLaughlin of the Eastern District of Pennsylvania recently dismissed a class action complaint brought against CVS Pharmacy and CVS Caremark for selling information provided by prescription drug purchasers.  Notably, in its decision in Steinberg v. CVS Caremark Corp., the court found that information on a customer’s prescription drug and medical history “carries