Jane Azia the Chief of the Bureau of Consumer Frauds and Protection in the Office of the New York Attorney General. She is among 100+ experts to speak at the PMA Marketing Law Conference.
We asked her a few key questions about the future of Marketing Law that gave us some insight on what we can expect to see coming down the line.
If you can predict 2013, what do you think the most newsworthy trend will be in the laws of promotion, advertising, sweepstakes, social media, privacy, mobile, and IP?
Data privacy is the hottest topic at the moment. In addition to the COPPA controversy discussed above, the issue of online and mobile tracking and targeting has exploded this year. Almost 200 class action lawsuits have been filed against publishers, ad servers and advertisers. Congress is considering legislation and the FTC is pushing for industry to adopt a Do Not Track option for consumers. The advertising industry favors a do not target option, and for it to be available as an opt-out as opposed to a default as Microsoft new version of IE will offer. While the online industry has implemented a system of hypernotice and opt-out of behaviorally targeted ads, the mobile industry lags far behind. Indeed, many of mobile apps do not even have notices to users explaining their data privacy practices. Meanwhile, the EU has imposed strict consent rules for tracking and targeting, though most countries are moving away from express affirmative consent to notice and opt-out, except for sensitive data. Data privacy issues present challenges to the advertising industry, which has come to rely on highly targeted ads to improve effectiveness of ads and increase revenues. The industry must educate consumers and provide them with sufficient notice and choice if it wants to avoid regulatory changes that could upset the online and mobile advertising ecosystem.
What do you think is the most important “hot button” in marketing law currently?
The FTC’s recently proposed supplemental proposed rule changes to the Children’s Online Privacy Protection Act, in particular its apparent determination to expand the concept of persistent identifiers and device identifiers to be treated as personally identifiable information. A better approach would be to treat them as personally identifiable information only to the extent they are used to specifically contact and engage a child — i.e., concentrate on preventing the harm COPPA was intended to prevent, namely the ability to contact a child without parental consent. While expanding the definition of personally identifiable information under COPPA would only affect children under 13, it opens the door for greater regulation of persistent identifiers in the general population. If persistent identifiers are personally identifiable information for children, the data does not magically cease being personally identifiable when a child turns 13. Thus it will not be a stretch to say that adults should have the right to provide prior express consent to the collection and use of persistent identifiers associated with their devices when online or on mobile, just as companies will be required to get verified parental consent before collecting and using children’s persistent identifiers except for certain first party operational purposes, as has been proposed. Further, the FTC’s proposed operational exception needs to be expanded to better address the complexity of the online and mobile ecosystem. In addition, the FTC’s proposal to make third party social media plug ins, technology providers and ad exchanges and networks, on the one hand, and sites and online services that utilize or interact with such third parties, on the other hand, liable for each other’s COPPA failures is not practical and risks diminishing the availability of third party technology and services on children’s and family sites. In addition, the proposed change to require so-called family or mixed use sites to affirmatively age screen and treat users over and under 13 differently if the site is visited by a percentage of users under 13 than exist in the general population will create an undue burden on sites that are directed to a general audience, but might be visited nonetheless by children such as apparel and consumer products sites. Finally, the proposal to eliminate the ability of children’s sites to collect online contact information from children for internal purposes only, where it is not shared with third parties, by the currently wide spread method of e-mail plus (i.e., and e-mail notice to the parent with a follow up communication designed to confirm that the person is a parent and does not object), as opposed to the more obtrusive sign and mail, sign and fax or credit card transaction methods will create havoc for children’s sites. The FTC has pointed to no harm justifying elimination of e-mail plus, but has rather stated that it hopes doing so will spur innovation of new methods of more verifiable methods of confirming parental consent. Imposing economic burdens on publishers is not justified in an absence of harm to be avoided.
The PMA is proud to open its 34th Annual Marketing Law Conference on Monday, November 12, at the Sheraton Hotel & Towers in Chicago, IL. You will hear from experts like Jane Azia as well as representatives from Facebook, Twitter, Ford Motor Company, and FTC Commissioners. Everything you need to know about the laws and regulations of promotion marketing will be discussed at the PMA Marketing Law Conference.
For more information or to register, please visit the PMA website at: http://www.pmalink.org/?page=law2012