The California Consumer Privacy Act (CCPA) requires businesses who engage in sales of personal information, to offer consumers the right to opt out of such sales through a “Do Not Sell My Personal Information” link or button on their websites. These “Do Not Sell” obligations present a particularly thorny question for businesses that participate in a digital ad exchange or otherwise use advertising tracking technologies on their websites. Because data elements such as IP address, cookie ID, device identifier and browsing history are considered “personal information” for purposes of the CCPA, the question is: does sharing that information with third-party ad tech providers constitute a “sale” of data?

The answer, so far, is a resounding “maybe.” In what follows, we expand on the issue and survey different approaches to this hotly contested question.

Why the Debate?

The CCPA defines a “sale” as “selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a consumer’s personal information by the business to another business or a third party for monetary or other valuable consideration.” The Network Advertising Initiative (NAI) broke this definition down into three main elements that, when satisfied, might make the case that digital advertising involves a “sale.”

    • The digital advertising must involve “personal information.” We know that it does because serving digital ads requires, at the very least, access to IP address and browsing history.
    • The digital advertising must involve the movement of personal information from a business to another business or third party. This is often true for digital advertising relationships, as ad tech intermediaries and other participants in the ad exchange often use the personal information they have received from businesses for their own purposes, thus taking many ad tech entities outside of CCPA’s “service provider” safe harbor.
    • The digital advertising must involve the exchange of monetary or other valuable consideration for the personal information. This is a fact-specific inquiry that will vary across contractual arrangements. For that reason, the NAI analysis states it would be difficult to broadly categorize all digital advertising activities as “sales.” However, the NAI cautions that if the recipients of personal information can retain the information “for profiling or segmenting purposes” (e.g., the ability to monetize the data independently), that could be evidence of a “sale” of data.


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If you haven’t heard about newest gaming craze yet, it’s based on what is called “augmented reality” (AR) and it could potentially impinge on your home life and workplace as such games allow users to “photograph” imaginary items overlaid with objects existing in the real world. An augmented reality game differs from “virtual reality” in

Recent comments linking digital health tools to so-called “snake oil” has the channels of social media atwitter.  (Add this post to the noise!)  While some may decry the comparison, there is a lot we can learn from that perspective.

One of the challenges of broad digital health adoption is the simple fact that digital health encompasses such a broad array of technologies, usages and purposes.  There is no one tonic that will cure a list of ailments; rather we are presented with shelves of solutions to even more shelves of challenges waiting to be addressed.  Digital health includes, by my definition, the application of social media tools to preventative health and chronic disease management measures, as well as highly sophisticated data analytics applied to massive amounts of population health data to identify important health trends.  It also includes home monitoring devices that keep health care providers informed of their patient’s at-home health condition, as well as telestroke programs that allow physicians to access needed expertise.  The list is potentially endless, as new technologies created to address health issues and existing technologies are being put to use in the health care context.
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Earlier today, the Court of Justice of the European Union (CJEU) announced its determination that the U.S.-EU Safe Harbor program is no longer a “safe” (i.e., legally valid) means for transferring personal data of EU residents from the European Union to the United States.

The CJEU determined that the European Commission’s 2000 decision (

Is a social media promotion part of your organization’s branding plans? Please join Julia Jacobson (McDermott partner and Of Digital Interest editor) and her co-panelists next Tuesday, July 28, 2015, at 2:00 pm for “Sweeps, Contests & Games in Social Media”. The webinar, the second in a three-part series hosted by the Brand

On 11 May 2015, the UK Information Commissioner’s Office (ICO), the French data protection authority (CNIL) and the Office of the Privacy Commissioner of Canada (OPCC) announced their participation in a new Global Privacy Enforcement Network (GPEN) privacy sweep to examine the data privacy practices of websites and apps aimed at or popular among children.

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The legislative process involves

In 2014, regulators around the globe issued guidelines, legislation and penalties in an effort to enhance security and control within the ever-shifting field of privacy and data protection. The Federal Trade Commission confirmed its expanded reach in the United States, and Canada’s far-reaching anti-spam legislation takes full effect imminently. As European authorities grappled with the

For those Of Digital Interest readers attending the Brand Activation Association’s (BAA) 36th Annual Marketing Law Conference, please join McDermott partner – and Of Digital Interest editor – Julia Jacobson as she moderates a panel titled “New and Unexpected: Developments in Mobile Marketing – Mobile Tracking, Apps and Mobile Payments.” She