Aaron I. Messing, Esq., CIPP OlenderFeldman LLP amessing@olenderfeldman

1. Search in Regulated IndustriesEmerging Legal Issues Related to Search Engine Optimization & Privacy • Aaron I. Messing, Esq., CIPP • OlenderFeldman LLP • amessing@olenderfeldman.com • @amess | @privacyinfo

2. Emerging Trends Related to SEO & Privacy • Increasingly, consumers are using a combination of search and social media to make purchasing decisions. • The use of social media, targeted behavioral advertising and search engine optimization as a driver of consumer preference will only increase. • Businesses need to engage consumers with the right message, using the right medium, at the right time – without being deceptive or obtrusive. • Regulated industries cannot afford to ignore these trends. Unfortunately, although regulation is pervasive, regulatory guidance has been lacking, especially in the social media, disclosures and “Big Data” context. OlenderFeldman LLP @privacyinfo

3. Search Engine Optimization (SEO) • SEO Competition. Top search spots are extremely competitive. • Backlinks and Content Analysis. Link analysis is one of the most important ways that search engines determine the relevancy of a web page. • Content Creation. SEO companies use employees, freelancers and bloggers to generate content which can be problematic for regulated industries. • Optimizing or Deceiving? Can “optimizing” a website for search engines be considered legally deceptive and misleading? OlenderFeldman LLP @privacyinfo

4. Federal Trade Commission (FTC) Enforcement • Protection Against Unfair and Deceptive Trade Practices. Section 5 of the Federal Trade Commission Act (15 U.S.C. § 45) grants the FTC power to investigate and prevent deceptive trade practices. • Paid Links and Reviews Attracting Regulatory Attention. FTC rules require full disclosure when there is a “material connection” between a merchant and someone promoting its product. • FTC Requires Mandatory Disclosures But Does Not Specify How Disclosure Should be Made. “Disclosures can be made in different ways, whether you make it outside the text but in proximity to the blog, or incorporate it in the blog discussion – those are issues that bloggers will have discretion about.” Assistant Director Richard Cleland, 10/7/09 • Forthcoming Guidance: The FTC will host a workshop entitled “Advertising Disclosures in Online and Mobile Media” on May 30, 2012 to consider the need for new guidance. OlenderFeldman LLP @privacyinfo

5. SEO Best Practices for Regulated Industries • Ask and Tell. Clients need to ask what their SEO company is doing and SEOs companies need to tell them. • Review Content, Keywords, Title Pages and META Descriptions. The use of targeted keywords can walk the line between “optimization” and unfair and deceptive trade practices. • Substantiate Your Claims. Make sure claims can be substantiated and are not deceptive or unfair. • Build content around neutral search terms and build SEO through goodwill. Draw traffic with unbranded informational materials that use search terms you want to optimize for. OlenderFeldman LLP @privacyinfo

6. SEO Best Practices for Regulated Industries • Create Internal and External Facing Policies. Create policies for both employees and third parties regarding acceptable content and enforce them. • Create a Disclosure Policy. If you are paying someone to write about a product/service, you need to disclose that information. • Build in Compliance. Smart SEO companies provide various forms of disclosure in both text and image form to remain compliant while not tipping off the search engines. • Incorporate Contractual Safeguards in Agreements. Obtain warranties and representations as to what activities are permitted and what are not. Obtain indemnification where possible. OlenderFeldman LLP @privacyinfo

7. Consumer Privacy & “Big Data” • The Age of Big Data. Tracking technologies observe web users’ interestsand conversions to build online behavior profiles. • Behavioral advertising is effective. Statistics show behavioral advertising can increase the click through rate and bring in more revenue than of non-targeted advertising. • Ubiquitous Tracking. New analytic tools and algorithms make it possible to combine “anonymous” information to create detailed profiles that can be associated with a particular computer or person. • Consumer Concern. Consumers are increasingly concerned with tracking and uncomfortable with behavioral advertising. OlenderFeldman LLP @privacyinfo

8. Mo’ Data, Mo’ Problems • Regulation is Coming in the form of legislation and “voluntary” compliance. • Be Careful What You Collect. Collect only the information you need. • Beware the Backlash from retargeting campaigns, the collection of personal information and the use of 3rd party cookies. OlenderFeldman LLP @privacyinfo

9. Privacy Best Practices • Disclose and Communicate: Disclosure is important in privacy policy and terms of service, but should also be communicated in context. • Develop Policies for data collection, retention and deletion. • Practice What You Preach. Make sure your policies accurately reflect your practices. • Prepare for Breach. Have a response ready in case of emergency. • Companies lacking a robust compliance program governing collection, protection and use of personal information may face significant risk of a data breach or legal violation, resulting litigation, and a hit to their bottom lines. OlenderFeldman LLP @privacyinfo