Presentation for Beverly Hills Bar Ass'n on Nuts and Bolts of Online Advertising,

1. Bennet Kelley
www.internetlawcenter.net
© 2014. Internet Law Center
ONLINE ADVERTISING 2014!

2. DEC
2012
FTC SENDS
INFORMATION
REQUESTS TO
DATA
BROKERS
2

3.
APRIL
2013
RAMIREZ
CALLS FOR
DO-NOTTRACK
MECHANISM
THAT COVERS
ALL DATA
COLLECTION
“[C]onsumers still await an effective and functioning
Do Not Track system, which is now long overdue”.
3

4.
MAY
2013
FTC Sting of
Data
Brokers
Shows High
Rates of
Abuse
FTC approached 45 companies seeking such consumer
financial data, and "10 appeared willing to sell
information without complying with the requirements of
the FCRA."
4

5.
JUNE
2013
DO NOT
TRACK
Debate
Heats Up
as
Advocates
Seize the
Offensive
ü FTC Commissioner Brill cites Snowden fiasco in
launching “Reclaim Your Name” initiative
ü Mozilla-Stanford team up for cookie clearinghouse to
block 3rd party cookies
ü Still not operational
5

6. JUNE
2013
IAB: COOKIE CLEARINGHOUSE,
“A NUCLEAR FIRST STRIKE AGAINST
ADVERTISERS”
IAB DENOUNCES
COOKIE
CLEARINGHOUSE
AS KANGAROO
C O U RT
C A L L S M O Z I L L A’ S
M AY E R “ A
BOLSHEVIK OF
THE INTERNET
WORLD”.
6

7.
CALIFORNIA
PA S S E S
P R I VA C Y
L E G I S L AT I O N
REQUIRING
WEBSITE
DISCLOSURE
OF HOW THEY
HANDLE DO
NOT TRACK
REQUESTS
ü The categories of personally identifiable information (“PII”) collected;
ü the categories of third-parties with whom the information is shared;
ü whether there is a process for the consumer to review information
collected and/or make changes;
ü whether 3rd parties collect a user’s PII; and
ü how the website responds to DNT requests.
7

8. MAR
2014
FTC TO HOLD
ANOTHER BIG
DATA
WORKSHOP
ü How are companies utilizing these predictive scores?
ü How accurate are these scores and the underlying data used to
create them?
ü How can consumers benefit from the availability and use of these
scores?
ü What are the privacy concerns surrounding the use of predictive
scoring?
ü What legal protections currently exist for consumers regarding the
use of predictive scoring, both in the United States and
internationally?
8

9.
DEC-JAN
2013-14
ü H A R R I S
FILES SUIT
AGAINST
D E LTA O V E R
MOBILE APP
ü H A R R I S
RELEASES
BEST
PRACTICES
GUIDE FOR
MOBILE APP
Delta won dismissal of suit on preemption grounds.
9

10. FTC Releases
Staff Reports on
Mobile Privacy
D i s c l o s u re a n d
highlighting
f a i l u re o f
d i s c l o s u re s i n
Mobile Apps for
Kids
10

11.
What different types of mobile device tracking are companies currently implementing, how do
they work, and where are they used?
FTC TO
HOLD
WORKSHOP
ON MOBILE
DEVICE
TRACKING
What are the similarities or differences between mobile device tracking and online tracking
technologies?
What types of information and benefits do retailers gain from these technologies?
What benefits do consumers derive from these technologies?
What are the privacy and security risks associated with these technologies?
How are companies addressing these risks?
What information and choices are provided to consumers about this type of tracking?
How anonymous is the tracking?
11

12. U P D AT E P R I O R
GUIDELINES TO
ADDRESS
ü S O C I A L
MEDIA
ü M U LT I P L E
P L AT F O R M S
Hey @InternetLawCent check out our
new .com Disclosure Guides. Its Free*!
FTC Updates
Dotcom Disclosure Guidelines
12

13. THE FOUR P S
¡ P ROMINENCE
Is it big enough for consumers to
notice?
¡ P RESENTATION
I s w o rd i n g a n d f o r m a t e a s y f o r
consumers to understand?
¡ P LACEMENT
Is it where consumers will look?
¡ IPi ROXIMITY c l a i m i t q u a l i fi e s ?
s t close to the
13

14. MULTI-PLATFORMS
WEB
MOBILE
14

15. THE CURSE OF 140 CHARACTERS
15

16. UOANHO
SYNDROME
“ J u l i e B ro w n –
PS”
Use
Of
Acronym
Nobody’s
Heard
Of
16

17. JUNE
2013
FTC ISSUES
GUIDANCE TO
SEARCH
ENGINES
Result s integrated into the natural search results, search
e ng ine s should use:
¡ MORE PROMINENT SHADI NG that has a clear outline;
¡ A PROMINENT BORDER th at distinctly sets off
advert isi ng from the natura l search results; or
¡ TEXT CUES
17

18.
FTC
WORKSHOP
ON NATIVE
ADVERTISING
Increasingly, advertisements that more closely
resemble the content in which they are embedded are
replacing banner advertisements – graphical images
that typically are rectangular in shape – on publishers’
websites and mobile applications.
18

19. FEB
2013
Another
FTC No Action Letter
19

20. Including one
on comparative
pricing, that
might have
spared
O v e r s t o c k ’s
$6.42 million
judgment for
deceptive price
advertising.
20

21. AMAZON TAX HEADS TO
WASHINGTON
MARCH
APRIL
2013
ü N E W Y O R K
H I G H C O U RT
UPHOLDS
A M A Z O N TA X
ü S E N AT E
PA S S E S
MARKETPLACE
FA I R N E S S A C T
“Don't tax you, don't tax me, tax that man behind the tree.”Sen . Russell B. Long
21

22. AMAZON TAX
¡ Quill v North Dakota:
Adopts Bright Line Rule
under Due Process and
Commerce Clause: Need
Physical Presence in State
to Be Required to Collect
Sales Taxes
504 U.S. 298 (1992)
¡ New York “Amazon Tax”.
Deemed to have in-state
presence if
§ Affiliate Marketers who receive
commissions
§ generate gross receipts in
excess of $10,000 during
preceding four quarters
22

23. AMAZON TAX
ALL EYES ON WASHINGTON
¡ NEW YORK COURT PUNTS UPHOLDS
LAW
§ The world has changed dramatically in the last two
decades, and it may be that the physical presence
test is outdated. An entity may now have a profound
impact upon a foreign jurisdiction solely through its
virtual projection via the Internet. That question,
however, would be for the United States Supreme
Court to consider.
§ Amazon has filed petition for cert.
Overstock.com v. New York, 20 NY3d 586 (2013).
¡ ILLINOIS SUPREME COURT STRIKES
DOWN LAW
§ Violates Internet Tax Fairness Act (47 USC Section
151) by imposing discriminatory obligations.
§ Performance Marketing Ass’n v Hamer, 2013 IL
114496 (2013).
23

24. SUPREME COURT DENIES CERT
24

25. AMAZON TAX
ALL EYES ON WASHINGTON
¡ M ARKETPLACE
FAIRNESS ACT
STALLS IN THE
HOUSE
§ Allow states to collect online
sales tax if they are part of
Streamlined Sales and Use
Tax Agreement
§ Small Business Exemption
§ Passed Senate 69-27
§ Stalled in the House
25

26. N e w Yo r k A G
Busts 19
Companies for
writing fake
re v i e w s o n
Ye l p e t c .
I n D e c e m b e r,
California AG
files indictment
against online
re p u t a t i o n
company
linked to
re v e n g e p o r n
site.
26

27. XCENTRIC
VE NTURES,
LLC v.
ROB ERTS e t al.
Court denies Rip-off Report request for preliminary
injunction against company promoting boycott of its
advertisers.
27

28.
DEC 2010
Figh ting
In ter net and
Wireles s Spam
Act (C-28)
pas ses
JULY 1, 2014
Law and
Implementing
Regs go into
effect
Canada’s enforcement authorities indicated they were ramping up and their first
enforcement priority would “the most egregious violators: the high-volume spammers, the
6,000 malicious URLs and the 20 botnets currently located in Canada.”
Photo Creative Commons “Canada’s Gold” by Sheezix1000.
28

29. KEY PROHIBITIONS
ü Sending commercial email
without express or implied
consent of the recipient
ü I mplied consent if existing
business or non-business
relationship;
ü I mplied consent if posting
email address on website or
providing business card
without a statement indicating
not to send unsolicited
commercial email .
ü Failure to include opt-out
mechanism and identify
the advertiser by name and
address;
ü Alteration of transmission
data in an electronic
message to a destination
other than that specified
by the sender without
express consent; and
ü Installation of a computer
program on another
person's computer without
express consent of the
recipient.
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30. THANK YOU!
Bennet Kelley
Internet Law Center
100 Wilshire #940
Santa Monica, CA 90401
www.internetlawcenter.net
(310) 452-0401
bkelley@internetlawcenter.net
Twitter: InternetLawCent
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