Privacy 2010

1. Privacy 2010 Update on the FTC Roundtables and Congressional Action WE KNOW THE INTERNET

2. The Past is Prologue

3. 1999 • FTC Conference on Online Profiling • OECD Consumer Protection Guidelines • Network Advertising Initiative • 2000 • FTC Report to Congress 1999-2000

4. A Call for Regulation • Commends NAIbut . . . • [Recommends] legislation that would set forth a basic level of privacy protection for all visitors to consumer-oriented commercial Web sites with respect to profiling. • Basic standards of practice governing the collection and use of information online for profiling, and provide an implementing agency with the authority to promulgate more detailed standards • [Including] authority to grant safe harbors to self-regulatory principles which effectively implement the standards of fair information practices articulated in the legislation and subsequent rulemaking.

5. 2001 • FTC Conference on Consumer Data • NAI adopts opt-out cookie • New Chairman Muris – legislation “premature” • 2002 • “Dewey the Turtle” 2001-2005

6. Behavioral Targeting

7. 34! PAGE TWO Seattle Beacon March 18, 2010 Got Sun? SEATTLE’S SOGGY SODS CITY BREAKS RECORD FOR CONSECUTIVE RAINY DAYS SEATTLE. Forget Spain, the rain falls mainly in Seattle as the Emerald City “enjoyed” its 34th consecutive day of rain breaking the 1953 record. Sonny Smith, President of the Visitors and Convention Bureau was quick to point out that even with the record, the city still gets far less total rain than cities such as Miami. In fact, Seattle is not even among the top 101 cities for total rainfall. So remember, it could be worse – you could be in Miami. We got plenty in Palm Springs www.sunsunsun.com

8. Got Sun? 34! PAGE TWO Seattle Beacon March 18, 2010 12TH Annual Chainsaw Juggling Convention SEATTLE’S SOGGY SODS CITY BREAKS RECORD FOR CONSECUTIVE RAINY DAYS SEATTLE. Forget Spain, the rain falls mainly in Seattle as the Emerald City “enjoyed” its 34th consecutive day of rain breaking the 1953 record. Sonny Smith, President of the Visitors and Convention Bureau was quick to point out that even with the record, the city still gets far less total rain than cities such as Miami. In fact, Seattle is not even among the top 101 cities for total rainfall. So remember, it could be worse – you could be in Miami. FRIDAY MARCH 19TH KING COUNTY HOSPITAL & CONVENTION CENTER

9. By the Numbers Increased Click-through rates 670% to 1000% Increased Conversions • 400 to 900% BUT . . . 66% of consumers do not want websites they visit “to show you ads that are tailored to your interests

10. Renewed Focus on BT

11. 2006 • CDD Files FTC Complaint Attacking BT • 2007 • Merger Mania • ehavioral Advertising Workshop • CDD “Do Not Track” Proposal • FTC Proposes BT Self-Regulatory Guidelines • Facebook’s Beacon Program 2006-2007

12. 2008 • Industry Pushback on Self Regulatory Principles • NAI Updates Principles • NebuAd and BT 2.0 Blow up on Capitol Hill • FTC Workshop on Mobile Marketplace 2008

13. JAN-AUG 2009 • FTC Releases Revised BT Guidelines • Leibowitz Repeated Warnings to Industry • House hearings, explore BT • IAB, DMA, AAAA Release BT Guidelines 2009

14. FTC’s Revised Proposed Self-Regulatory Guidelines (2009) • Every website where data is collected for behavioral advertising should provide a clear, concise, consumer-friendly, and prominent statement that • data about consumers’ activities online is being collected at the site for use in providing advertising about products and services tailored to individual consumers’ interests, and • consumers can choose whether or not to have their information collected for such purpose. • Reasonable Security, and Limited Data Retention, for Consumer Data • Affirmative Express Consent for Material Changes to Existing Privacy • Affirmative Express Consent to (or Prohibition Against) Using Sensitive Data for Behavioral Advertising

15. SEPT - DEC 2009 • FTC Announces Roundtable • Privacy Wars • Facebook Revised Privacy Policy • FTC Panel on Newspaper Industry • FTC/OECD Conf. on 10th Anniv. Of Guidelines • First FTC Roundtable 2009

16. Industry Self Regulatory Principles • Education • Transparency • Consumer Control • Data Security • Material Changes • Sensitive Data • Accountability

17. PrivacY WARS Competition for Consumers

18. PrivacY wars Competition for Public Opinion

19. Round One December 7th, 2009 Washington, D.C.

20. FTC Chairman Leibowitz • We're at another watershed moment in privacy, and the time is right for the commission ... to take a broader look at privacy . . . Our minds are open. • We all agree that consumers don't read privacy policies, or EULAs for that matter. I've been a supporter of opt-in for quite some time.

21. FTC Commissioner Commissioner Jones-Harbour I believe action has not been a high enough priority to date. [The] United States needs comprehensive privacy legislation. If we continue the piecemeal approach to privacy in this country, we merely push aside the underlying issues. Industry attempts to provide notice and choice to consumers have been insufficient thus far. We have strayed far from the Fair Information Practices that should serve as a baseline for any comprehensive privacy legislation.

22. Shift in Focus – Use not Collection • We are taking a look at a number of technologies and business practices—including social networks, cloud computing, mobile, data broker relationships, and behavioral advertising—and will assess both the benefits and risks of those practices. Christopher OlsenAsst. Director - Division of Privacy and Identity Protection

23. 2010 • Edith Ramirez and Julie Brill Confirmed • Google Buzz and Facebook Investigations • Netflix Settlement • Second and Third Roundtable • Waiting for Godot Stearns 2009

24. Round Two January 28, 2010UC Berkeley School of LawBerkeley, California

25. Vladek Warns of Enforcement Actions • Consumers don’t understand commercial information-collection practices (ex: data brokers, behavioral targeting). • Lengthy policies are not effective; and • FTC is preparing to launch enforcement actions against companies engaged in “practices that undermine the tools that consumers can use to opt out of behavioral advertising.”  David Vladek Director, Bureau of Consumer Protection

26. Round Three March 17, 2010Washington, D.C.

27. “Irresponsible Practices” Commissioner Jones-Harbour • Google’s Buzz and Facebook Privacy Policy change “irresponsible”. • Concerned that “technology companies are learning harmful lessons from each other’s attempts to push the privacy envelope. continue to launch products where their guiding privacy principle appears to be, “Throw it against the wall, see if it sticks – and if not, we can always pull it back.” Deeds speak louder than words, and this is turning into a dangerous game of “copycat” behavior. And unlike a lot of tech products, consumer privacy cannot be run in beta.” • Calls for FTC to adopt position of intolerance towards such behavior. • SSL security should be default standard in cloud computing.

28. What’s Next? David Vladek Chairman Leibowitz FTC not certain where it will go and plans to "sit back" and think about the detailed record before making public a set of detailed recommendations by June or July. “I have a sense, and it’s still amorphous, that we might head toward opt-in.” • CONGRESS • ???

29. New Commissioner Julie Brill • Senior Deputy Attorney General and Chief of Consumer Protection and Antitrust for the North Carolina Department of Justice • Co-chair of the National Association of Attorneys General Privacy Working Group and Fair Credit • Assistant Attorney General – Vermont

30. Congressional Limbo • March 13, 2009: Privacy bill a top priority • May 6, 2009: Working on draft privacy bill. • October 1, 2009: “Privacy legislation affecting the online advertising industry could be submitted by November . . . [a]ccording to statements made recently by Rep. Rick Boucher. • January 28, 2010: Boucher "very close" to finishing a discussion draft of the legislation. Rep. Rick Boucher (D-Va)Chairman House Energy and Commerce Committee’sSubcommittee on Technology and the Internet.

31. THANK YOU! Internet Law Center100 Wilshire Blvd., Suite 950Santa Monica, CA 90401www.internetlawcenter.netBennet Kelley(310) 452-0401bkelley@internetlawcenter.net WE KNOW THE INTERNET

32. Appendix Consumer Data Ecosphere Slides About the Internet Law Center About Bennet Kelley

33. Consumer Data Ecosphere

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42. About Bennet Kelley Bennet is one of the nation’s leading Internet attorneys and founder of the Internet Law Center.  He is Co-Chair of the California Bar Cyberspace Committee and a frequent speaker on the latest developments in Internet law at conferences throughout North America.  Bennet also is a regular guest on Webmaster Radio’s “InBoxed”. Bennet has played a leading role in shaping Internet law and policy having testified and lobbied on Internet issues in Washington and Sacramento, winning praise from a key Congressional committee for his contributions to federal spyware legislation. In addition, the Internet Law Center’s bi-weekly newsletter, Cyber Report, was named one of the top 100 Internet law resources and recognized by the LA Press Club.