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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MILO Celebrates 4th Anniversary & 2850 Members

This is an article from TheMacLawyer, Ben Stevens:

“The Macs In Law Offices (MILO) forum recently (and quietly) celebrated its fourth anniversary.  Since its inception on February 17, 2007, it has grown to become the premier online forum for attorneys who want to maximize the use of Macs in their law practices.  Today, I am proud to say that MILO has over 2,850 members, with more joining every day.  If you are not yet a member, you can take advantage of this free resource by clicking HERE.”

You can see his great blog post on Mac use in the law office at:

http://www.themaclawyer.com/articles/mac-vs-pc/

His site is definitely one of the better sites dedicated to how technology affects the legal environment.  As always, he provides useful and timely information.

From Findlaw: “E-Discovery in 2010 – It Doesn’t Have to Be Perfect”

Book learning

Image by gorbould via Flickr

By Stacy Jackson (Findlaw.com) for Complete Article CLICK HERE.

The advent of e-discovery has given birth to a new field of ancillary litigation — discovery about discovery. Parties are busy looking for what’s missing, in the hopes of making their opponent “the spoliator”. You see, once you label the opposing party as “the spoliator” the riches can be many – including an adverse inference jury instruction and cold, hard cash in the form of sanction.

So, it’s a good thing that this years’ overarching e-discovery theme is “perfection” – more accurately, a lack of perfection. It’s all right that your preservation, collection and production efforts aren’t perfect – as long as they are reasonable and performed in good faith. Consider the two most prominent cases of 2010 – Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC , 685 F. Supp. 2d 456 (S.D.N.Y. 2010) and 269 F.R.D. 497 (D. Md. pt. 9, 2010) .

Perfection is not expected, but you cannot conduct discovery in an “ignorant and indifferent fashion.”

About the Author of the Original Article on Findlaw.com

ABA Releases Results of Legal Technology Survey

Image representing iPhone as depicted in Crunc...

Image via CrunchBase

By Jason Beahm (Findlaw.com)  on October  6, 2010  5:57 AM|

A new report demonstrates that attorneys are increasingly making use of technology. According to the 2010 American Bar Association Legal Technology Survey Report, attorneys are increasingly using Web 2.0 and other technologies in their practice. Attorney’s use of social networking and smart phones both grew by double-digit percentages.

The ABA survey is a project of the ABA Legal Technology Resource Center, which provides the legal community with news and information on technology and its use by attorneys. The Legal Technology Resource Center writes about technology and provides continuing legal education on practice management through the use of improved technology. The survey provides over 500 pages of detailed statistics and trend analysis on the use of technology in the practice of law. Over 5,000 ABA members were surveyed as part of the project. The Legal Technology Survey Report comes in six volumes, Technology Basics, Law Office Technology, Litigation and Courtroom Technology, Web and Communication Technology, Online Research, and Mobile Lawyers.

The report is worth taking the time to read at your leisure. In the meantime, here are a few highlights:

  • 71 percent of attorneys are using smart phones in the courtroom, up from 60 percent in the 2009 survey. 64 percent of respondents use smart phones in court to check for new e-mail, 60 percent send e-mail and 46 percent perform calendaring functions.
  • 56 percent of those surveyed maintain an online presence on a site like Facebook or LinkedIn, up from 43 percent in 2009 and 15 percent in 2008.
  • 10 percent of those surveyed have landed a client through the use of online communities or social networks.
  • 76 percent of respondents use smart phones, up from 64 percent in 2009.
  • The most popular brands of smart phones among attorneys were BlackBerry (66%), iPhone (20%) and Palm (9%).
  • 14 percent of respondents have a virtual law practice.

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.