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A Sale or Not a Sale? The Digital Advertising Debate

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...

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Augmented Reality

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 that it mixes elements of the real world with avatars, made up creatures, fanciful landscapes and the like, rather than simply presenting a completely fictional scenario. Whether you play such games yourself or are merely existing in nearby surroundings, here are few things to think about as an active participant, and some tips regarding Intellectual Property and confidentiality issues that arise from others playing the game around you. Augmented reality games are typically played on a smartphone app and some of them allow the user to capture images of the player’s experience and post it on social media, text it to friends or...

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The Rocky Road of Evaluation for Digital Health Tools

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...

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Court of Justice of the European Union Says Safe Harbor Is No Longer Safe

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 (Safe Harbor Decision) validating the Safe Harbor program did not and “cannot eliminate or even reduce the powers” available to the data protection authority (DPA) of each EU member country. Specifically, the CJEU opinion states that a DPA can determine for itself whether the Safe Harbor program provides an “adequate” level of personal data protection (i.e., “a level of protection of fundamental rights and freedoms that is essentially equivalent to that guaranteed within the European Union” as required by the EU Data Protection Directive (95/46/EC)). The CJEU based its decision invalidating that Safe Harbor opinion in part on...

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Upcoming Webinar | Sweeps, Contests & Games in Social Media

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 Activation Association (a division of the Association of National Advertisers (ANA)) will explore endorsement, intellectual property and privacy legal issues, as well as the practical aspects of balancing brand wants with compliance needs and participation verification and fulfillment. For more information, please click here.

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GPEN Children’s Privacy Sweep Announced

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. This closely follows the results of GPEN’s latest sweep on mobile applications (apps),which suggested a high proportion of apps collected significant amounts of personal information but did not sufficiently explain how consumers’ personal information would be collected and used. We originally reported the sweep on mobile apps back in September 2014. According to the CNIL and ICO, the purpose of this sweep is to determine a global picture of the privacy practices of websites and apps aimed at or frequently used by children. The sweep seeks to instigate recommendations or formal sanctions where non-compliance...

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Any Progress? The Draft Data Protection Regulation Celebrates its Third Anniversary

On the third anniversary of the EU Commission’s proposed new data protection regime, the UK ICO has published its thoughts on where the new regime stands. The message is mixed: progress in some areas but nothing definitive, and no real clarity as to when the new regime may come into force. The legislative process involves the agreement of the European Commission, the European Parliament and the Council of Europe (representing the governments of the member states). So far the European Parliament has agreed its amendments to the Commission’s proposal and we are still waiting for the Council to agree it’s amendments before all three come together and try and find a mutually agreeable position. The Council is guided by the mantra “nothing is agreed until everything is agreed”, and so even though there has been progress with the Council reaching “partial general agreement” on international transfers, risk-based obligations on controllers and processors, and the...

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Privacy and Data Protection: 2014 Year in Review

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 draft data protection regulation and the “right to be forgotten,” the African Union adopted the Convention on Cybersecurity and Personal Data, and China improved the security of individuals’ information in several key areas. Meanwhile, Latin America’s patchwork of data privacy laws continues to evolve as foreign business increases. This report furnishes in-house counsel and others responsible for privacy and data protection with an overview of key action points based on these and other 2014 developments, along with advance notice of potential trends in 2015. McDermott will...

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Join Us at BAA’s Marketing Law Conference for a Panel Discussion on Developments in Mobile Marketing

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 will be joined by Ira Schlussel of HelloWorld, Inc., Paul Twarog of Google Inc. and co-moderator Terese Arenth. The panel session starts at 3:20 pm on Thursday, November 6.  We hope to see you there.

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