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On Thursday, the Federal Trade Commission (“FTC”) hosted a workshop to explore the practices and privacy implications of comprehensive data collection. The event gathered consumer protection groups, academics, privacy professionals, and business and industry representatives to examine the current state of comprehensive data collection, its risks and potential benefits, and what the future holds for consumers and their choices.

In her opening remarks, FTC Commissioner Julie Brill indicated the agency was open to revising its consumer privacy framework if comprehensive data collection warranted heightened restrictions or enhanced consent to protect and inform users: “We know that comprehensive data collection allows for greater personalization and other benefits, but there may be other contexts in which it does not lead to desirable results.”

The workshop was one of five main action items adopted by the FTC as part of its March 2012 report, Protecting Consumer Privacy In an Era of Rapid Change.  In the report, the commission told companies that consent was not required for the collection and use of information that was consistent with a particular transaction or the company’s relationship with the consumer. But the agency said it needed more information to determine how this principle applied to technologies that could capture large amounts of consumer information, such as deep packet inspection (DPI).Continue Reading FTC Hosts Workshop to Examine Comprehensive Data Collection

On Thursday, November 15, 2012, Judge Robert S. Lasnick of the Western District of Washington dismissed Del Vecchio v. Amazon, stating that the parties had reached a settlement, the details of which were not disclosed.  The suit had alleged (among other things) that Amazon used Flash cookies to backup…

Continue Reading Amazon Settles “Flash Cookie” Lawsuit

A U.S. district court has approved the Federal Trade Commission’s $22.5 million settlement with Google.  The FTC had charged that Google misrepresented to users of Apple’s Safari browser that it would not place tracking cookies or serve targeted ads to those users, violating an earlier privacy settlement between the company and…

Continue Reading Court Approves $22.5 Million Google Settlement

The Federal Trade Commission has announced that it will host a public workshop on December 6 to discuss the privacy issues raised by the collection of data about consumers’ online activities by so-called large platform providers.  According to the scheduling notice, the FTC seeks to explore the potential privacy issues…

Continue Reading FTC Schedules December 6 Workshop On Data Collection By Large Platform Providers

On Monday, the Online Interest-Based Advertising Accountability Program, which monitors compliance with the Self-Regulatory Principles for Online Behavioral Advertising, issued a decision finding that the auto company Kia had failed to adhere to the Principles.  The Accountability Program also issued decisions stating that Kia’s ad agency–and the…

Continue Reading OBA Accountability Program Issues Significant Decisions

Today the Federal Trade Commission has announced its approval of a consent decree to settle charges that Google misrepresented to users of Apple’s Safari browser that it would not place tracking “cookies” or serve targeted ads to those users, violating an earlier privacy settlement between the company and the FTC.  The decree…

Continue Reading FTC Approves $22.5 Million Consent Decree to Settle Charges that Google Bypassed Safari Users’ Privacy Settings

Yesterday, Microsoft announced that users of Windows 8 and Internet Explorer 10 will have a “first run” option to disable the default “Do Not Track” privacy setting.  A first run option occurs during the software set-up process.  If users take no action, the DNT setting will be enabled by default.…

Continue Reading Microsoft Announces Design of “Do Not Track” Privacy Feature for Windows 8

The House Judiciary Subcommittee on Intellectual Property, Competition, and the Internet recently held a hearing entitled “New Technologies and Innovations in the Mobile and Online Space, and the Implications for Public Policy.”  Much of the discussion focused on the relative merits of self-regulation versus the enactment of comprehensive federal privacy legislation.  (Separately, the Senate Commerce Committee has announced that it will hold a hearing on the adequacy of self-regulation in protecting consumer privacy on June 28.)

In his opening remarks, Rep. Melvin Watt (D-NC) discussed the need for “baseline progressive legislation that will provide certainty to both consumers and companies, and promote a healthy online economy.”   Rep. Watt appeared to support the White House framework of enacting comprehensive federal privacy legislation that would be complemented by industry codes of conduct.  Emphasizing the importance of legislation, Watt surmised that, “without a baseline set of principles with the force of law, privacy policies may be used by larger players in an anti-competitive manner to drive smaller players from the market.”Continue Reading House Hearing Discusses Merits of Comprehensive Federal Privacy Legislation, Self-Regulation

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)

The FTC has decided not to pursue an enforcement action against Clearwater Aquarium for alleged violations of the Children’s Online Privacy Protection (“COPPA”) Rule. 

In February 2012, the Children’s Advertising Review Unit (“CARU”) referred the Clearwater Aquarium’s website to the FTC for review under COPPA after the Aquarium reportedly did not…

Continue Reading FTC Refers Children’s Privacy Case Back To CARU