1. +
Washington’s Privacy Tango
Searching For the Elusive Consensus
March 13, 2012
Bennet Kelley
Internet Law Center

2. +
n Founder of Internet Law
Center in Santa Monica
n Former Co-Chair of Cal. Bar
Cyberspace Committee
n Host of Cyber Law & Business
Report on WebmasterRadio.fm
(Weds at 10-11AM PT)
n Publisher of Cyber Report
newsletter which won top
prize at 2011 LA Press Club
Awards and named a top
source for internet law

3. +
This Debate Is Not New
n OK, Not Quite That Old
n Since Advent of Internet
n What Has Changed
n Reach/Breach
n Acceptance of Some
Regulation
n Number of Players and
Technologies Involved

4. +
1999: SPOTLIGHT ON ONLINE
PROFILING
n 1999: FTC Conference
n 1999: Network Advertising
Initiative launched to stop
regulation
n 2000: Report to Congress

5.
• Commends NAI but . . .
• [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.

6. +
2001-2006: Other Priorities
• Spam (2003)
• Spyware (2004)

7. + 2007-2009 Dancing Over
Self-Regulation
• 2007: FTC Releases Self-Regulatory
Principles for Behavioral Targeting
• 2008: Industry Pushes Back
• 2009: Leibowitz Warns Industry Action is
Coming
• Industry Responds with IAB, DMA, AAAA
Guidelines

8. + Emergence of the
Creepiness Factor
“Is it legal? Probably. Do I think it's a good idea
and it makes sense? No. I don't think it passes
the creepy factor, and this market isn't ready
for stuff that doesn't pass the creepy factor,”
“We are not in a place where we an do dumb
things and stupid things like that, even if
they're effective.” Dave Morgan. Tacoda
Founder on NebuAds.

9. + 2009-2011: Lawyers of the
Roundtable
• Tenth Anniversary of Online Profiling
Conference
• Industry Still Fighting Regulation
• Complexity Increases
• . . . Oh and there’s that Social Networking
thing too.

10. +
Personal Data Eco-System
Any questions????

11. +
FTC Privacy Report
Our report and law enforcement
action send a clear message to
industry: despite some good actors,
self-regulation of privacy has not
worked adequately and is not
working adequately for Americans
consumers. We deserve far better
from the companies we entrust our
data to, and industry, as a whole,
must do better.
FTC Chairman Jon Leibowitz

12. +
DOC Privacy Report
n Endorses baseline commercial data
privacy principles that would fill any gaps
in existing U.S. law;
n Safe harbors against FTC enforcement for
practices defined by baseline data
privacy or self-regulatory codes;
n Limited rulemaking authority over certain
baseline fair information privacy
practices principles if it is established that
market failures require prescriptive
regulatory action; and
n National Data Breach Standards

13. +
Market Reaction
n Browser Wars
n Privacy Competition
n Industry Begins Policing Itself

14. +
Its Back . . .

15. +
Meanwhile . . .
n No Consensus on Capitol Hill
n Other Internet Battles
n Net Neutrality
n SOPA

16. Obama Bill of Rights
• Individual Control
• Transparency
• Respect for Context
• Security
+
• Access and Accuracy
• Focused Collection and
• Accountability

17. +
Half Empty
• Relies on self-regulatory principles and
passage of comprehensive privacy
legislation – neither of which is on the
horizon.
• Little different that where we were in 1999

18. +
Half Full
• Jump starts moribund legislative process
• Got industry backing of do-not track on
browser level
• Industry is engaging in self-regulation
and enforcement already
• Substantial movement in industry’s
approach since 1999

19. +
Internet Law Center
100 Wilshire Blvd., Suite 950, Santa Monica, CA 90401
(310) 452-0401
bkelley@internetlawcenter.net
www.internetlawcenter.net