Have Legislators Run Amock with Internet Advertising Restrictions?

Have national and state legislators run amock with Internet advertising restrictions?  Well, it depends on who you ask.  Indeed, it seems that there are compelling arguments for:  a.) Protecting consumers from unreasonable culling, collection, and misuse of private/confidential information;  b.) Allowing a free market economy driven by the need for information on what products and services are available to each of us;  c.) Taking a balanced approach that acknowledges that the Internet has become a primary means of advertising for all businesses and professionals.

Before jumping to conclusions about all of the bad advertisers, helpless consumers, and knee-jerk reactions to the issue, it seems that a little bit of careful analysis is required.  EsquireTech views this as a very complicated question because of the First Amendment and principles underlying a competitive marketplace.

Not only is the risk for consumer information release and abuse an issue, data breaches are already costing companies millions of dollars per instance.  In fact, one can apparently calculate the total exposure to a breach of data security.  Knowing this to be the case, should legislation be treated as more of a temporary mitigation effort until data security protocols can be more objectively injected into the marketplace?

NetChoice.org has released its hitlist of questionable internet legislative efforts.  The list (the Iawful list) primarily focuses on laws designed to limit the culling of private consumer information.

More specifically, opt-in and opt-out provisions are proposed for advertisers, limits are proposed on targeted marketing from social websites, and the imposition of additional disclosure requirements is contemplated.

For obvious reasons, the issue of First Amendment rights permeates this entire process.  Consumers should have a right to evaluate information on products and services.  Companies should have the right to collect basic information in the open where that information will help them survive in a tough economy and to better their products and services.

It is also noteworthy that social website advertising is a good method for attorneys to reach potential clients.  As long as any advertising is generalized and not targeted at specific victims (ambulance chasing) or making promises of litigation results, the First Amendment interest in being able to communicate with potential clients is obvious.  “Networking” with others in the Internet Agora is the new form of meeting up at the public square, having a chat over the telephone, or hanging out at a social gathering.

These otherwise ‘traditional’ sources of potential clients have been concentrated in the new social media and it would be draconian to just assume that none of it can be good. Rather, it seems, that a balanced approach needs to be taken as to which advertisers are capable of culling information in the first place.

The average attorney Facebook advertiser, for example, is simply looking for general characteristics of users and trying to reduce overall expense for advertising where forcing a general distribution would be cost prohibitive and to sporadic to even be effective.  While the natural tendency for lawyers, Libertarians, and market participants might be to say that we really need to put the brakes on internet advertising, be careful — it might just be that if you stop the train too quickly, everything moves forward and and is crushed under the weight of itself.

Whether or not any of this legislation will come up against the commercial free speech rights of advertisers is an open question.

While there are arguments to be had about culling personal information as defined by law, it does not follow that geo-specific advertising to a DNS area is per se’ bad.  Anyway, here’s the list:

The iAWFUL Top Ten: Click On Any Item To Learn More About the Laws that Threaten Your Use of the Internet

The March 2011 iAWFUL Top Ten

  1. Congressional Do Not Track Privacy Bill – Do Not Track is an unjustified restriction on targeted advertising, which helps pay for free online services and content.
  2. Social Network Micro Managing These bills would prevent teenagers from sharing their address and phone numbers on social networking sites and further limit their online interactions.
  3. Affiliate Nexus Bills – An unconstitutional expansion of sales tax burdens to out-of-state businesses.
  4. Recurring Offer Restrictions – Restricting consumers’ ability to use convenient automatic renewals.
  5. Child Online Registry and Do-Not-Market Mandate – Dangerously exposes children’s email addresses while drastically restricting US advertisers’ ability to market to children.
  1. Behavioral Advertising Restrictions – Severe restrictions on websites’ ability to collect user information that enables websites to provide free services and content.
  2. Telemarketing Restrictions on Online Marketing – Sorry, but Do Not Call just Does Not Work for the Internet.
  3. Adolescents’ Online Privacy Protection Act – Strips teenagers’ access to any website collecting information without first obtaining parental consent.
  4. Remote Purchaser Reporting Mandate – Requires out-of-state companies to report consumers’ purchasing information to the state’s Department of Revenue.
  5. Restrictions and Liability for Geo-Location Tracking – Requires repeated consumer consent for the collection of geographical information.

What follows below is the Press Release from Jackie Speier.  EsquireTech is a bit torn on this one since I just argued a consumer privacy case where electronically maintained real estate loan information was released by a lender to operators of a Ponzi scheme, resulting in some $142,000,000.00 in losses in just one area of the state. (Richter v. Nationstar, et al.).

Just to add to the consumer misery, the victims of the fraud were subjected to a Star Chamber arbitration process where they were literally not allowed to be heard whatsoever and the lender was not required to release any of the electronic information its own employees were allegedly kind enough to share with Ponzi scheme operators.  The disallowance of any material evidence, discovery, or production from the defendants was done regardless of the fact that the ex-employee was convicted on felony fraud, an SEC judgment, a Department of Corporations C&D, CA Department of RE C&D, and a civil injunction won by our office.  How can a consumer fight the collection of and a release of electronic information if they are not even allowed to know how the leak occurred or what information was leaked?

In short, regardless of the overwhelming evidence that consumer information was abused, Nationstar and Centex Home Equity were able to rely on a sneaky arbitration process that quieted the potential exposure to the lender for sharing information without permission.  Then, to boot, the companies who released information are seeking to sanction the consumers for even bringing the issue up.

Again, it seems that a careful balancing act is required in order to weigh the interests of the advertising community with those of reasonable consumers.

Press Release from Representative:

Washington DC – Congresswoman Jackie Speier (D-CA), a longtime consumer advocate, today held a press conference to introduce a package of privacy bills aimed at protecting the personal information of all Americans. The Do Not Track Me Online Act of 2011 (H.R. 654) would give consumers the ability to prevent the collection and use of data on their online activities. The Financial Information Privacy Act of 2011 (H.R. 653) would give consumers control of their own financial information. Consumer Federation of America, Consumers Union, Consumer Action, U.S. PIRG, Consumer Watchdog, World Privacy Forum, the Center for Digital Democracy, and the ACLU all announced their support.

“These two bills send a clear message—privacy over profit,” Speier said. “Consumers have a right to determine what if any of their information is shared with big corporations and the federal government must have the authority and tools to enforce reasonable protections.”

There is no longer any anonymity on the Web. The most personal information about people’s online habits is collected and eventually bought and sold, often instantaneously and invisibly. Data collection practices have become a business in themselves, driven by profits at consumers’ expense. The Wall Street Journal recently highlighted these practices—which included targeting children—in its groundbreaking series “What They Know.”

The Do Not Track Me Online Act of 2011 would direct the Federal Trade Commission to develop standards for a “Do Not Track” mechanism that would allow individuals to choose upfront to opt out of the collection, use or sale of their online activities, and require covered entities to respect the consumer’s choice. Failure to do so would be considered an unfair or deceptive act punishable by law. The covered entity would have to disclose its collection and sharing practices, including with whom the information is shared. The bill would allow the FTC to exempt commonly accepted commercial practices like the collection of information for billing purposes.

A USA Today poll released Tuesday showed that 70% of Facebook members and 52% of Google users say they are either “somewhat” or “very concerned” about their privacy.

“People have a right to surf the web without Big Brother watching their every move and announcing it to the world,” Speier said. “The internet marketplace has matured, and it is time for consumers’ protections to keep pace.”

The Financial Information Privacy Act of 2011 would finally give consumers the ability to control the sharing of their own financial information. The bill mirrors legislation Speier successfully steered to passage in California that prevents financial institutions from sharing or selling personally identifiable nonpublic information with affiliates without an opportunity to opt-out, or in the case of unaffiliated third parties, a requirement that consumers opt-in. This bill gives consumers control of their personal financial information and provides meaningful but workable privacy protection.

“Because of the law we passed in California, consumers now have the clear and simple ability to prevent financial institutions from sharing their personal information,” Speier said. “Every American deserves that right.”

 

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Apple iPad 2 hands-on: Predictable, awesome (CNet.com)

Image representing iPad as depicted in CrunchBase

Image via CrunchBase

From Donald Bell at CNet.com :

What does the world’s most successful tablet computer
do for an encore? More of the same.

The second-generation iPad from Apple is thinner, faster, lighter, and
whiter, but not a radical departure from the original. Pricing is also holding
steady, starting at $499 for a 16GB Wi-Fi-only model, up to 64GB with 3G
(provided by AT&T or Verizon without contract) priced at $829.

You can’t blame Apple for going easy on new features. Apple’s original recipe
for the iPad single-handedly created and captured the demand for tablets last
year. By any measure, it is not a product in need of fixing. It has the market
share, it has the developers, and it has the momentum.

Apple also just makes damn fine products. Having had a few minutes with the
iPad 2, I can say that it is every bit as stunning as the original. The first
thing that struck me was the iPad’s weight loss. It’s still not Kindle thin, but
the lighter design should make the e-book crowd happier and prove to be a
distinct advantage over bulkier competitors, including the recent Motorola
Xoom
.

The second thing that registered with me is the feel of the device. Apple
still uses anodized aluminum on the back, which is cool to the touch and
generally resists smudges. The back now flattens out at the middle, allowing it
to better stay put when placed on a table. In spite of the iPad’s thickness
decreasing by a third, it seemed no more fragile than the original design. In
fact, with its lighter weight, it feels less susceptible to being dropped.

I also tried out Apple’s new magnetic Smart Cover. It’s cute and it works as
advertised. From a case perspective, though, it’s a G-string in a world of
coveralls. The tough part of selling these will be convincing customers that the
back of the iPad is resilient enough to resist normal wear and tear.

Of course, the banner feature for the iPad 2 is the addition of two cameras,
which can be used for recording video or stills. The camera on the back is
located in the upper-right corner, recessed onto the tapered edge to avoid
scratching. It looks just like the lens on the iPhone 4
and is similarly blessed with 720p video capture. There’s no camera flash,
and the sensor is not identical to the iPhone’s, since its still-shot
capabilities are essentially video stills (similar to the fourth-gen iPod
Touch). That said, having tested the cameras on more than a few competing
tablets over the past year, I can’t stress how ridiculous you feel shooting
pictures with a tablet in public. Talk about overkill.

[ Continued . . . ].

Read more: http://reviews.cnet.com/8301-31747_7-20038436-243.html#ixzz1FW6xD900

Where Google Is or Should Be ?

Here’s an article by CNet with observations about what should be focused on by Google in the coming months and year. You can click on the image below for the article and another interesting article can be found on InformationWeek.com.  You might also want to check out the Tope Ten Google Stories of 2010.

Google.com

The Clouds are Forming: The Legal Cloud Computing Association Announces its Formation and Web Presence

(12/16/2010)  Recognized leaders in legal cloud computing announced today the formation of the Legal Cloud Computing Association (LCCA), an organization whose purpose is to facilitate the rapid adoption of cloud computing technology within the legal profession, consistent with the highest standards of professionalism and ethical compliance.

The organization’s goal is to promote standards for cloud computing that are responsive to the needs of the legal profession and to enable lawyers to become aware of the benefits of computing technology through the development and distribution of education and informational resources.

The LCCA also announced the publication of its response to the ABA Commission on Ethics 20/20 Working Group with respect to the Commission’s September 10, 2010 call for comments on Client Confidentiality and the Use of Technology.

The group, consisting of Clio (Themis Solutions Inc.), DirectLaw, Inc., Rocket Matter, LLC and Total Attorneys, LLC, will cooperate with Bar Associations and other policy-forming bodies to release guidelines, standards, “best practices“, and educational resources relating to the use of cloud computing in the legal profession.

An informational website for the group: http://www.legalcloudcomputingassociation.org

You can see the rest of their press release at: http://www.legalcloudcomputingassociation.org/Home/industry-leaders-join-to-form-legal-cloud-computing-association

Of additional note is their response to the call for comments on client confidentiality and cloud computing in the legal profession: See, www.legalcloudcomputingassociation.org/Home/aba-ethics-20-20-response

My comments:

I think that the formation of a legal cloud computing association is not only timely, but incredibly necessary.  All too often, the everyday practitioner ends up behind the ethics of a given technology and today’s way of practicing law requires vigilance in keeping up to date on the various developments in tech.

While its is often easy to employ a new technology, it does not mean that any given state bar association will understand it or make room for use of the new tech.  This unavoidable gap in communications is readily evident in recent legal treatises on the issues.  It simply may be that tech is moving so fast that there is no practical way for state bar associations to keep up with the developments.  If this is the case, then any problems arising are something that can only be prevented by realtime communication between the tech-movers and the various bar associations.  It is critically important that “cloud lawyers” have a voice in the state bar associations as well as within the tech community.

Having a voice in the tech community means that we will have ever-improving tools for our profession, movement toward an environmentally friendly practice, and better ways of enjoying solo practice.  It also probably goes without saying that we also need to maintain our competitive edge on each other and for the benefit of the clients we advocate for.

Much thanks to the LCCA for starting this up and I wish them the absolute best coming into 2011 and beyond.

Google Chrome: One Step Closer to Paperless ?

Chrome OS Login

I just applied to be one of the test pilots for the Google Chrome OS. I am very interested in the prospect of having something that is connected to the Internet on a constant. Naturally, as a lawyer, I do have questions about security, confidentiality, practical use in the courtroom, and collaboration with staff. Hopefully, I will be one of the lucky one’s who gets to test this system in earnest.  I have tried, at various times, the Linux-Ubuntu OS, Windows (since its introduction), and Mac options since the 1980’s.  The prospect of a challenger to the old guard provides a clarion call for innovation.  I honestly hope that Chrome can drive innovation in this area — it’s been a while.

From what I can see, the upcoming Chrome OS is extremely user friendly and should be familiar to most of us vis a vis the use of “apps.” I certainly support anything that is quicker and which provides some level of long-term data integrity in terms of storage and accessibility. I am looking forward to becoming familiar with this particular OS and sharing the news as it comes in terms of strengths and weaknesses.
My guess is that the existing Google Apps will go a long way toward basic functionality. I already use Google Calendar, Google Docs, and Picasa for my photos. Each of these programs or services have improved over time and the fact that Google is way ahead with its research and development, I wouldn’t be surprised if they did not start to give Apple a real run for their money in the tablet OS arena and number of apps ultimately available. Much like in the 1980s, I think that Apple will have led the way, but may ultimately be overrun by its own innovation. Anyway, without further opining, you can check out the video showing Google Chrome in action on one of their demo units.
Just click on the video window below for a preview of the Chrome OS in action:

Electronic Privacy: A Moderate FTC Attack on Advertisers and Commercial Exploitation of User History Information

Obviously, one of the biggest concerns for a lawyer is the confidentiality of client records and work product.

As recently reported on the Huffington Post, there are a number of major players on the Internet who see it fit to trawl for user information when visiting their sites.  While maybe not a big deal, other than the unwanted hassle of targeted advertising, other sensitive information could be a real problem where one is storing client files on the Cloud or where similar factors present themselves.

While one could say that he/she will never be using the Cloud to store client data, I think the reality is that there may be no realistic alternatives in the future for what we consider to be standard storage now (i.e., hard drives, USB drives, external drives, etc.).  It’s not all bad if we plan now and place a privacy/security infrastructure in place now.

Historically, the confidentiality between the learned professions and those are served by those professions has been largely respected and protected.  Current technology does not eliminate the legitimate public policy concerns underlying these privileges against invasion, disclosure, production, and admission into evidence before a court.  For better or worse, most public policy issues express themselves through the regulatory environment and the creation of a whole new set of laws and restrictions (as though we don’t have enough laws on the books).  This being said, until there is a way of getting people to better behave themselves, we will have to settle for making a complex legal system even more so.

Realistically, I think that we will all eventually end up storing and processing much of our information through services such as Dropbox, Windows Live, Google Docs, RocketMatter.com, and other cloud-based servers.  While it is easy to say that hard storage will never be eliminated, the same could have been said of the cassette tape, VCRs, eight-tracks, zip drives, and a whole host of other tech items that seemed to earn what we thought was a permanent place in our daily lives.  While the main focus on these forms of storage media were related to intellectual property rights, privilege issues have not been widely discussed in the legal field.  It may simply be that lawyers, as a profession, are way behind the technological curve.  However, I am fairly certain that our clients not only expect confidentiality of information, they rightfully demand it.

In a recent review by me of the Rutter Group’s treatise on Professional Responsibility, there was quite a bit of information in the privacy concerns that arise as a matter of professional ethics.  Most of the information related to state bars coming down on lawyers for advertising violations.  There was also a brief discourse on how Facebook and other social networking sites affect bias of the judiciary, public perception, and client confidentiality.  What was not provided was a solution to how attorneys can stay competitive, be environmentally friendly, and how they might protect information in a world of data retention that changes and advances by the day.  Thus, this all becomes an issue about what we are all willing to do in order to protect not only confidential client information, but our own reasonable expectations of privacy in our personal lives as professionals and regular citizens/consumers.

Notwithstanding the privacy concerns within our specific profession, the Federal Trade Commission (FTC) is working on some proposals designed to address the invasions of privacy occasioned by some of the sites specifically mentioned in the Huffington Post article.

In the report, the FTC asserts that, “Companies should incorporate substantive privacy protections into theirpractices, such as data security, reasonable collection limits, sound retention practices, and data accuracy,” and that, “Companies should maintain comprehensive data managementprocedures throughout the life cycle of their products and services.”  There are also a number of practical proposals set out as well:

  • Privacy notices should be clearer, shorter, and more standardized, to enable better comprehension and comparison of privacy practices.
  • Companies should provide reasonable access to the consumer data they maintain; the extent of access should be proportionate to thesensitivity of the data and the nature of its use.
  • Companies must provide prominent disclosures and obtain affirmative express consent before using consumer data in a materially different manner than claimed when the data was collected.
  • All stakeholders should work to educate consumers about commercial data privacy practices.

While I am ordinarily no fan of governmental interference with a Free Market Economy, I must say that I do agree with the conclusion that many of the cooking tracking, user-history exploitation, and unwanted targeted advertising schemes are the product of a lack of education on the part of Internet users.

Moreover, unlike the voluntary decision to go to a store or similar place, the decision to utilize the internet is one that often involves making a connection from one’s private location and the associated plethora of data that rests on our personal or business computers.  As indicated above, this is a huge concern especially for professionals who retain confidential information with respect to their clients.  One can only sadly imagine the potential liability exposure should a marketer get a hold of professional-user information that references specific clients and sensitive data associated with them.

Keeping up on these issues is a must for not only those of us in positions of trust, I strongly believe that there is a legitimate issue of safety that deserves the expenditure of governmental resources for preventative measures and, at a minimum, for the education of those who use the internet.

Noterize: Mark Up Docs with this Basic App

Noterize is an app that I have used when I’m in a pinch to mark up a pdf exhibit and just need to make some basic notes as to the document along with any high-lighting.  I have mixed feelings about this app because I do not find the user interface to be all that particularly friendly.  What is likeable about the app is the fact that it is easy to import documents from Dropbox. Also, legal notes and comments can be placed directly onto the documents.  Adding an all encompassing toolbar for easy navigation would be a great improvement to an otherwise good app.

I would recommend this app to anyone looking for an adjunct to Noteshelf, which is very user friendly and intuitive.  With respect to both apps, having Adobe‘s Acrobat Pro 10 is an absolute must.  If you are inclined to use your Mac, PDFPenPro 5 is also a great user-friendly .pdf creation, editing, and sharing program for Mac.  I would give Noterize an 8 out of 10.  It could be a near perfect app with some work on the UI.  You can click on either image below for additional reviews on this app.  The pic below these is an actual screen shot showing the high lighting function, comments, and signature ability.