The Legal Perspective — Linda Goldstein On "Do Not Track", Self-Regulation and Consumer Protection [INTERVIEW]

By Katie Kindelan Comment

Online privacy is undoubtedly a hot topic and the current ‘buzzword’ of social media. But it’s also a confusing web, from Congressional hearings, federal legislation and regulatory framework to lawsuits, individual company action and more. To break it down and see what’s in store on the road ahead, we reached out to an expert, Linda Goldstein, chair of the Advertising, Marketing and Media practice at the law firm of Manatt, Phelps & Phillips, for a Q&A on everything from “Do Not Track” to mobile to apps and politics.

Social Times: Will the government be able to enforce a “Do Not Track” mechanism on the Web?

LG: At present, it is unknown. This will depend largely on how the mechanism will function. The FTC has proposed in its recent privacy report that browsers allow consumers to place a persistent cookie on their browser to alert web sites that track surfing behavior to not track that particular user. The FTC has asked in its report for comments on this proposal, as well as other possible mechanisms. If the mechanism is cookie-based, the FTC would require proof that the site is tracking a consumer’s browsing patterns  despite that consumers election to not be tracked.

If such proof exists, it would either be the burden of the consumer to report this violation or the responsibility of the FTC “privacy” lab to scour the web to detect and warn websites in violation of this regulation.

Social Times: The Association of National Advertisers (ANA) just issued a call to members to self-regulate before the government gets involved – will such industry efforts be sufficient to stave off legislative efforts? Are online advertising and data privacy issues that can be self-regulated?

LG: There are three issues at play here. First, whether or not there is enough industry backing in support of self-regulation efforts; second, if yes, this would require widespread consumer education which lends the question of resources; and third, this call for self-regulation would necessitate the development of meaningful enforcement tools. To date, the FTC has been critical of these efforts as lacking in all three areas.

Social Times: What would be the benefit of “Do Not Track” for consumers, and will it really be user-friendly?

LG: The “Do Not Track” mechanism would ensure that consumers are not having their surfing history tracked and possibly sold or combined to develop a massive database of their online surfing behavior. There is a growing concern among various stakeholders that too much information is being aggregated, leading to a fear that this information can potentially be hacked by third parties or used for harmful purposes. The FTC report urges that any mechanism developed for this purpose be easy to find and use for consumers.

Social Times: What is the outlook for privacy legislation in the new Congress?

LG: The issue is continuously gaining momentum and is very pro-consumer. However, the traction surrounding the issue may also be perceived as anti-business, which may lead Republicans and legislators in states with big advertisers to object.

Social Times: What do you predict will be impact of the November 2010 mid-term elections on the issue of online privacy?

LG: At the moment, I’m unsure of the exact impact the mid-term elections have had but with the very heavy Republican wins, there may be a growing anti-regulatory sentiment brewing that will become apparent over the coming months.

Social Times: Facebook has come under fire recently for releasing user data to app developers. Are apps the biggest threat to Internet users?

LG: It seems that the apps are not, in fact, the biggest threats at the moment. The conversation surrounding apps is similar in nature to that of online tracking. The only difference is that apps do not give quick access to privacy policies, so users are unaware of how their information will be collected and utilized. Users may not know that their actions are being tracked altogether.

Social Times: What should social networkers do to protect their privacy online? What is the biggest threat(s) they should look out for?

LG: Social networkers need to be very careful about and conscious of what they post and be sure to read the privacy policies of the networking sites that they have a presence on.

Social Times: Where do you see the issue of privacy on mobile platforms headed? Will 2011 be the year it takes over the headlines?

LG: Mobile platforms will be a very important stage for policy in 2011. People are embracing an increasingly on-the-go lifestyle and recent reports have seen a huge shift in use from desktops and laptops to mobile devices. A lot of attention will focus on location-based apps and tracking, as consumers become increasingly aware that apps are collecting data and targeting advertisements based on their physical locations and habits.