FCC Announces Public Forum on Location Based Services for Mobile Devices

On June 28, 2011, the FCC's Wireless Telecommunications Bureau, in conjunction with staff from the FTC, will hold a "public education forum" to discuss, among other things, industry best practices and the benefits/risks of "Location Based Services" for smartphones and other mobile devices.  The forum is expected to include members from industry and technology companies as well as consumer groups and academia.  In connection with the forum, the FCC is accepting comments about LBSs.  Together, the forum and comments are expected to help inform a forthcoming FCC staff report on LBS.

The LBS forum is one of the many events in Washington concerning mobile privacy, an issue that has become quite the hot topic in the wake of concerns regarding LBS use by Apple and Google.  As we discussed earlier here, the Senate Judiciary Committee's new Subcommittee on Privacy, Technology and the Law already held a hearing about Apple and Google's  policies on location-based information.  These two companies, in addition to Facebook and other organizations, are again expected to appear on the Hill tomorrow to discuss mobile privacy and protections, this time before the Senate's Consumer Protection, Product Safety and Insurance Subcommittee.  Indeed, federal legislation has already been introduced that would regulate "geolocation" data of teenagers and children, as well as general commercial practices for the collection, use and sharing of personal information (which we discussed in detail here).

Parsing the FTC's Comments in the FCC's Telemarketing Inquiry into "On Behalf of" Calls

Has the FTC Missed the Point, or is it Subtly Seeking to Expand Liability?

The Federal Trade Commission recently announced that it filed comments in a Federal Communications Commission declaratory ruling proceeding aimed at determining the scope of TCPA liability for companies when third-party vendors make unlawful telemarketing calls.  The FTC urges the FCC to rule that when a company that provides goods or services allows a third-party to offer them, calls placed by that third party qualify as calls made on behalf of, and initiated by, the company that provides the goods or services, even though that company did not place the call.  But the FTC's comments are unclear how far it seeks to have the FCC go in this regard, and that lack of clarity serves to obscure whether the FTC has avoided the core question, or is really seeking to impose substantially broader telemarketing liability.

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Operators of Online "Virtual Worlds" Agree to Largest Civil Settlement of COPPA Complaint to Date

By Micah Ratner

While over on the Hill the question was whether the Children’s Online Privacy Protection Act (“COPPA”) could be a springboard to “bigger and better” regulatory things, the Federal Trade Commission made news by enforcing the existing statute to elicit the largest civil settlement under the FTC COPPA Rule to date. On May 11, 2011, Playdom, Inc., an operator of over 20 online “virtual online worlds, agreed to pay $3 million to settle FTC claims that it violated COPPA by collecting and disclosing personal information from hundreds of thousands of children under 13 without prior parental consent.

Playdom’s websites were geared toward general audiences but also attracted children, and one of the online worlds called “Pony Stars” was specifically directed at children. The complaint also alleged that Playdom’s privacy policy violated the FTC Act (related to unfair or deceptive acts or practices) by misrepresenting that it would prevent children from posting personal information on its sites. The FTC noted that by summer’s end 2010, Playdom had terminated most of the online worlds at issue, though some continued in operation for several months by non-U.S. based providers, before shutting down as well.

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DWT Advisory: New Do-Not-Track Bills Target Online Behavioral Marketing and Mobile Apps

By Paul Glist

Two new “do-not-track” privacy bills would impose new restraints on online tracking, behavioral marketing, and the use of mobile application and geolocation data. Rep. Markey introduced his discussion draft with his co-chairman of the House privacy caucus, Rep. Barton. Their “Do Not Track Kids Online” bill would build on the current Child Online Privacy Protection Act (COPPA), which requires parental consent for collecting and using personal information online from children under 13.

Using the political hook of protecting children, the bill proposes to convert COPPA into a framework extending to online and mobile apps, and to tracking and marketing to all those under 18—in the process imposing age verification requirements and other processes that may redefine the apps and mobile experience for all users. Sen. Rockefeller’s version, the “Do Not Track Online Act of 2011,” would simply grant the Federal Trade Commission (FTC) the power to define and adopt the comprehensive do-not-track regime the FTC recommended in December 2010 (which we discussed in detail earlier).

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Senators Grill Apple and Google over Location Tracking and Privacy

By Rob Morgan

During the maiden hearing of the Senate Judiciary Committee’s new Subcommittee on Privacy, Technology, and the Law chaired by Senator Franken, committee members pressed Google and Apple on how the companies use, collect, and share their customers’ location data, the notices they provide consumers, and the privacy standards they apply to third party applications. Online and mobile privacy issues have become Hill mainstays, but Franken scheduled his first hearing –Protecting Mobile Privacy: Your Smartphones, Tablets, Cell Phones and Your Privacy – in the wake of revelations that Apple’s iOS4 operating system for its iPhones and iPads collected and stored users’ location information even when they tried to turn off location services.

Among other things, the hearing helped underscore the extent to which the Hill has been long awaiting a specific proposal on reforms of the Electronic Communications Privacy Act (“ECPA”), which would be expected to address concerns such as those underlying these involving location data. In fact, Senator Leahy, Chairman of the Judiciary committee, indicated at the hearing that he would “soon” introduce an ECPA update to address some of these issues.

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Does Dismissal of Flash Cookie Case Against Specific Media Signal Smoother Sailing for Targeted Advertising?

By Rob Morgan

Online advertisers may collectively be breathing a cautious sigh of relief following last week's dismissal by the U.S. District Court in the Central District of California of the class action in Genevive La Court, et al. v. Specific Media, Inc.  Plaintiffs had alleged Specific Media improperly used local shared objects ("LSOs," also known as "Flash cookies") to bypass web users' security settings to gather browsing information to support targeted ads.  The Court held that Plaintiffs failed to demonstrate specific harm needed to support standing to bring such a suit, but gave them leave to amend the complaint and try again.  Although Plaintiffs have said they intend to re-file, the Court pointed out other problems with the claims that could be difficult to overcome, even in a new filing.

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