Archive for the ‘Advertising’ Category

Privacy: For the Rich or for the Poor?

posted by Omer Tene

Some consider the right to privacy a fundamental right for the rich, or even the rich and famous. It may be no coincidence that the landmark privacy cases in Europe feature names like Naomi Campbell, Michael Douglas, and Princess Caroline of Monaco. After all, if you lived eight-to-a-room in a shantytown in India, you would have little privacy and a lot of other problems to worry about. When viewed this way, privacy seems to be a matter of luxury; a right of spoiled teenagers living in six bedroom houses (“Mom, don’t open the door without knocking”).

 

To refute this view, scholars typically point out that throughout history, totalitarian regimes targeted the right to privacy even before they did free speech. Without privacy, individuals are cowed by authority, conform to societal norms, and self-censor dissenting speech – or even thoughts. As Michel Foucault observed in his interpretation of Jeremy Bentham’s panopticon, the gaze has disciplinary power.

 

But I’d like to discuss an entirely different counter-argument to the privacy-for-the-rich approach. This view was recently presented at the Privacy Law Scholar Conference in a great paper by Laura Moy and Amanda Conley, both 2011 NYU law graduates. In their paper, Paying the Wealthy for Being Wealthy: The Hidden Costs of Behavioral Marketing (I love a good title!), which is not yet available online, Moy and Conley argue that retailers harvest personal information to make the poor subsidize luxury goods for the rich.

 

This might seem audacious at first, but think of it this way: through various loyalty schemes, retailers collect data about consumers’ shopping habits. Naturally, retailers are most interested in data about “high value shoppers.” This is intuitively clear, given that that’s where the big money, low price sensitivity and broad margins are. It’s also backed by empirical evidence, which Moy and Conley reference. Retailers prefer to tend to those who buy saffron and Kobe Beef rather than to those who purchase salt and turkey. To woo the high value shoppers, they offer attractive discounts and promotions – use your loyalty card to buy Beluga caviar; get a free bottle of Champagne. Yet obviously the retailers can’t take a loss for their marketing efforts. Who then pays the price of the rich shoppers’ luxury goods? You guessed it, the rest of us – with price hikes on products like bread and butter.

 

Read the rest of this post »

  July 26, 2012 at 2:05 am  Tags: big data, data protection, discrimination, price discrimination, Privacy  Posted in: Advertising, Conferences, Consumer Protection Law, Cyberlaw, Privacy, Privacy (Consumer Privacy), Technology, Uncategorized   Print This Post   6 Comments

Stanford Law Review Online: The Money Crisis

posted by Stanford Law Review

The Stanford Law Review Online has just published an Essay by former U.S. Senator Russ Feingold entitled The Money Crisis: How Citizens United Undermines Our Elections and the Supreme Court. Senator Feingold explains how the Supreme Court decision in Citizens United threatens the integrity of our political process:

As we draw closer to the November election, it becomes clearer that this year’s contest, thanks to the Supreme Court’s 2010 Citizens United decision, will be financially dominated by big money, including, whether directly or indirectly, big money from the treasuries of corporations of all kinds. Without a significant change in how our campaign finance system regulates the influence of corporations, the American election process, and even the Supreme Court itself, face a more durable, long-term crisis of legitimacy.

[In Citizens United,] the Court was presented with a narrow question from petitioners: should the McCain-Feingold provision on electioneering communications (either thirty days before a primary election or sixty days before a general election) apply to this movie about Hillary Clinton? The movie, of course, was not running as a normal television commercial; instead, it was intended as a long-form, “on demand” special.

Yet Chief Justice Roberts clearly wanted a much broader, sweeping outcome, and it is now clear that he manipulated the Court’s process to achieve that result. Once only a question about an “on-demand” movie, the majority in Citizens United ruled that corporations and unions could now use their general treasuries to influence elections directly. Despite giving strenuous assurances during his confirmation hearing to respect settled law, Roberts now stands responsible for the most egregious upending of judicial precedent in a generation. As now-retired Justice John Paul Stevens wrote in his dissent to the majority in Citizens United: “[F]ive Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”

He concludes:

The Court has a clear opportunity. A new challenge from Montana could allow the Supreme Court to reconsider its decision in Citizens United, and at least two justices have hinted that the 2010 ruling is untenable. In granting a stay of a Montana Supreme Court decision upholding that state’s anticorruption laws, Justice Ginsburg, writing with Justice Breyer, found the pulse of the chaos Citizens United has wrought: “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Commission, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’”

Justice Ginsburg is correct. Today’s framework for corruption cannot stand.

Read the full article, The Money Crisis: How Citizens United Undermines Our Elections and the Supreme Court by Russ Feingold, at the Stanford Law Review Online.

Note: corrected for typos

  June 14, 2012 at 7:30 am  Tags: campaign finance, citizens united, Politics, Supreme Court  Posted in: Advertising, Corruption, Jurisprudence, Law Rev (Stanford), Politics   Print This Post   2 Comments

Innovation (as in Beer!) – The Punch Top Can and Lawsuits to Come

posted by Deven Desai

Yes! You can now shotgun a beer with less trouble and mess than before. I saw an ad for the new Punch Top can by Miller Light and couldn’t believe it. The claim is that the new hole is for a “smoother pour.” (see the ad below). Come on. This innovation is about shotgunnig beer. This post captures the snark

Now, it’s only been two years since the brand unveiled the “Vortex Bottle,” a seemingly useless and unnecessary bottle design feature that has somehow lasted 23 months longer than anyone expected. Undoubtedly, the success of the swirly bottle neck has influenced the powers that be at Miller Lite to carry over their brand of “science” to cans. I can only imagine what the supporting market research looks like: “In our study, seven out of 10 brospondants said that when they shotgun cans of cheap beer to the amusement and horror of their friends, they opt for Miller Lite. Of those that answered positively, four out of five said that they have been wounded by the jagged aluminum the occurs in the wake of puncturing the can with their car keys, which reportedly ‘hurts like a bitch.’”

Lawsuits ahead? Sure why not? 1. Campus and underage drinking events mean someone will get alcohol poisoning or get hurt after drinking from these cans. Of course as the industry says Drink Responsibly (and in the ad, “Great Beer, Great Responsibility (with a TM it seems, so don’t go talking about great responsibility even if you are Spiderman’s uncle or maybe Marvel will sue. Hey I found another lawsuit!); but they offered the tool, so go get ‘em. Oh and other shot gun tools are available just search for beer shotgun under images in Google for an example. 2. How about a patent suit? Maybe. It seems Coors tried this innovation path a couple years ago. OK not really. It was a joke as far as I can tell. But one comment said no one would do it. And now the joke is real.

Innovation, as in beer!

  April 30, 2012 at 3:40 pm   Posted in: Advertising   Print This Post   No Comments

Santorum: Please Don’t Google

posted by Derek Bambauer

If you Google “Santorum,” you’ll find that two of the top three search results take an unusual angle on the Republican candidate, thanks to sex columnist Dan Savage. (I very nearly used “Santorum” as a Google example in class last semester, and only just thought better of it.) Santorum’s supporters want Google to push the, er, less conventional site further down the rankings, and allege that Google’s failure to do so is political biased. That claim is obviously a load of Santorum, but the situation has drawn more thoughtful responses. Danny Sullivan argues that Google should implement a disclaimer, because kids may search on “Santorum” and be disturbed by what they find, or because they may think Google has a political agenda. (The site has one for “jew,” for example. For a long time, the first result for that search term was to the odious and anti-Semitic JewWatch site.)

This suggestion is well-intentioned but flatly wrong. I’m not an absolutist: I like how Google handled the problem of having a bunch of skinheads show up as a top result for “jew.” But I don’t want Google as the Web police, though many disagree. Should the site implement a disclaimer if you search for “Tommy Lee Pamela Anderson”? (Warning: sex tape.) If you search for “flat earth theory,” should Google tell you that you are potentially a moron? I don’t think so. Disclaimers should be the nuclear option for Google – partly so they continue to attract attention, and partly because they move Google from a primarily passive role as filter to a more active one as commentator. I generally like my Web results without knowing what Google thinks about them.

Evgeny Morozov has made a similar suggestion, though along different lines: he wants Google to put up a banner or signal when someone searches for links between vaccines and autism, or proof that the Pentagon / Israelis / Santa Claus was behind the 9/11 attacks. I’m more sympathetic to Evgeny’s idea, but I would limit banners or disclaimers to situations that meet two criteria. First, the facts of the issue must be clear-cut: pi is not equal to three (and no one really thinks so), and the planet is indisputably getting warmer. And second, the issue must be one that is both currently relevant and with significant consequences. The flat earthers don’t count; the anti-vaccine nuts do. (People who fail to immunize their children not only put them at risk; they put their classmates and friends at risk, too.) Lastly, I think there’s importance to having both a sense of humor and a respect for discordant, even false speech. The Santorum thing is darn funny. And, in the political realm, we have a laudable history of tolerating false or inflammatory speech, because we know the perils of censorship. So, keeping spreading Santorum!

Danielle, Frank, and the other CoOp folks have kindly let me hang around their blog like a slovenly houseguest, and I’d like to thank them for it. See you soon!

Cross-posted at Info/Law.

  February 29, 2012 at 5:54 pm   Posted in: Advertising, Architecture, Bright Ideas, Culture, Current Events, Cyberlaw, Education, First Amendment, Google and Search Engines, Humor, Innovation, Just for Fun, Law Talk, Media Law, Politics, Psychology and Behavior, Technology, Web 2.0   Print This Post   7 Comments

The Valentine’s Day Gift That Keeps On Giving

posted by Joseph Turow

Bluemountain is a “freemium” site owned by American Greetings.  That is, it allows some free card sending and also offers a subscription for premium cards.  This card was from a subscription account and retrieved from the person who received the card.  The box above on the right lists the companies that either have placed cookies in the person’s browser in the process of loading the card, or that are checking for previously placed cookies.

The names includes some of the biggest players in cross-site behavioral advertising business.  Bluemountain’s privacy policy isn’t clear about the kinds of data these firms can learn about the recipients of its cards.  Based on what happens elsewhere on the web, one would suppose that what the firms conclude about the receiver’s card-viewing will be connected to other data about the recipient.  (Could the social connections—who sent the card to whom—also be a part of what Facebook and ClearSaleing, and other firms with social-marketing interests are after?)  Inferences about the meaning of these data can affect the ads, discounts, and other content the person gets elsewhere.  Alone the phenomenon may seem trivial.  In the context of streams of data collection, and moving into a future of increasingly sophisticated big-data analytics, it raises important social issues.

The process is transparent; your Valentine recipient wouldn’t normally see it.  This box is the result of a Ghostery application that reveals them.

  February 15, 2012 at 12:26 pm   Posted in: Advertising   Print This Post   One Comment

The Disconnect Between What People Say and Do About Privacy

posted by Joseph Turow

In the course of my research I’ve been fortunate to be able to speak at length with media planning executives and practitioners.  They spend much of their time figuring out how to use data to send commercials to targeted segments and individuals online.  When the conversation turns to privacy issues, they invariably dispute that the public is genuinely concerned with the topic.  “When they respond to your surveys people may claim to worry about privacy issues,” the industry practitioners tell me. “But look at what they actually do online.  People will give up personal information just to get a discount coupon.  And look what they reveal about themselves on Facebook!  The disconnect between what people say and do shows that policymakers and academics misjudge the extent to which the public really cares about the use of data about them by marketers.”

It’s an interesting argument and one that must be taken seriously.  One response I give is that people are indeed complex, but their behavior doesn’t mean they are two-faced when it comes to privacy.  Rather, findings from national telephone surveys (conducted by me and with colleagues) going back to 1999 show that the majority of Americans are deeply unaware about what goes on with their information about them online.  They know companies follow them, but they have little understanding of the nature of data mining and targeting.  They don’t realize companies are connecting and using bits of data about them within and across sites.  They think that the government protects them regarding the use of their information and against price discrimination more than it does.  And over four surveys, about 75% of adult Americans don’t know that the following statement is false: “When a website has a privacy policy, it means that the site won’t share information about you with other companies without your permission.”

“Why don’t Americans know such things?” industry practitioners often ask me after I recite such findings.  “And why don’t they use anonymizers and other technologies if they are so concerned about leaking data about themselves?”  My answer to that typically takes the form of “people have a life.”  Learning ins and outs about the online world can be complex, and people have so many priorities regarding their families and jobs.  Too, when they go online, whether to Facebook, YouTube or a search engine, they want to follow their needs and leave.  In moments of rational contemplation they may well indicate web wariness.  But online their need to accomplish particular goals and often engage in emotional relationship-building may trump rationale calculation.  Chris Hoofnagle, Jennifer King, Su Li, and I inferred this pattern even from young adults—men and women 18-24 who common wisdom suggests wouldn’t care a whit about privacy.[1]

There is an additional explanation for people’s lack of knowledge about how data about them are treated under the internet’s hood.  Unfortunately many of the most prominent digital-marketing actors engage in a kind of doubletalk about their use of information.  It’s a consistent pattern of public faux disclosure that may simultaneously encourage people’s confidence in the firms’ activities and obfuscate the privacy issues connected with those activities.  And some of the biggest players engage in this privacy-doublespeak dance.

Consider how Google recently told its users about its decision to link information about their activities across its most popular services and multiple devices beginning March 1.  The consolidation was clearly a response to a number of developments.  Strategically, Google wanted to use its previously siloed data in ways that would be competitive to its increasing competitor, Facebook.[2]  More tactically, Google was motivated by the firm’s need to meet a European-Union directive that beginning May 1 all advertisers must obtain consent from their customers to allow websites to set cookies.  In the words of the U.K. trade magazine New Media Age, “Consolidating its multiple privacy policies, of which it has over 60, for all its accounts will mean consumers only have to give consent once for it to be effective across all Google products.”[3]

In the U.S. Google faced a major risk with the data consolidation.  The company had to know that some would see the action as violating last year’s agreement with Federal Trade Commission not to change its handling of people’s data without their explicit permission.  In fact, the Electronic Privacy Information Center filed a complaint with the FTC insisting Google’s new approach violates the deal.[4]  Perhaps to blunt such criticism, the company shouted out its new privacy regime to broad publics. For several days Google emblazoned its search page and the landing pages of its other holdings with statements such as “We’re changing our privacy policy” followed by blunt signals of seriousness—for example, “This stuff matters” or “Not the same yada yada.”  But if you clicked the link to learn more, you found essentially the same yada yada.  The urgency evaporated.  The language gave no sense that beginning March 1, to quote the Los Angeles Times, “the only way to turn off the data sharing is to quite Google.” [5]  Instead, clickers saw the comforting statement that the change was all good.  The privacy policy would be “a lot shorter and easier to read.” It would reflect “our desire to create one beautifully simple and intuitive experience across Google.”[6]

Google certainly isn’t alone in this purposefully confusing, often two-faced approach to the public.  Consider how Amazon makes it seem that its data mining is transparent with respect to its visitors.  On its landing page the firm is straightforward in letting you know that it is connecting what it previously saw of your site behavior with what others who did similar things bought.  But a trudge through the privacy policy will reveal that Amazon’s seemingly open approach to visitors’ data on the home page actually obscures a far broader and impenetrable use of their data for the company’s own and others’ marketing purposes.  Check out Pandora for a similar pattern of transparency and non-transparency in data-handling.  Or visit the Digital Advertising Alliance’s op-out area and note the disconnect between the availability of the opt-out choice and the rhetoric around it that makes its selection seem slightly absurd.

This sort of doublespeak may be endemic to the approach data-driven marketers are taking to the public.  As Wall Street Journal columnist Al Lewis recently noted, “Mark Zuckerberg says Facebook’s IPO is not about the money. But he then says it’s about creating a liquid market so his employees and investors can get their money—proving the maxim that it’s always about the money.”[7]  Such corporate “explanations” of their activities add yet another reason for the public’s failure to understand the dynamics of big data in their lives.

[2] Byron Acohido, Scott Martin, and Jon Swartz, “Consumers in the Middle of Google-Facebook Battle,” USA Today, January 26, 2012, http://www.usatoday.com/tech/news/story/2012-01-25/google-facebook-competition/52796502/1, accessed February 8, 2012.

[3] “Google to consolidate privacy data to bolster ad targeting,” New Media Age, January 25, 2012.  Thanks to Jeffrey Chester for pointing out this article to me.

[4] Byron Acohido, Scott Martin, and Jon Swartz, “Consumers in the Middle of Google-Facebook Battle,” USA Today, January 26, 2012, http://www.usatoday.com/tech/news/story/2012-01-25/google-facebook-competition/52796502/1 , accessed February 8, 2012.

[5] Jessica Guynn, “Google to Expand Its Tracking of Users,” Los Angeles Times, January 25, 2012, B1.

[6] “Google Policies & Principles,” http://www.google.com/policies , accessed February 8, 2012.

[7] Al Lewis, “Facebook, Dead of  Alive,” Wall Street Journal, February 5, 2012, http://online.wsj.com/article/SB10001424052970203889904577199481841403756.html?mod=WSJ_hp_mostpop_read , accessed February 8, 2012.

  February 8, 2012 at 1:55 pm   Posted in: Advertising   Print This Post   No Comments

The Hidden Dynamics of the Media System

posted by Joseph Turow

I’m flattered by Concurring Opinions’ request that I contribute to the blog this month. My expertise is not in the Law. It relates to the strategies and dynamics of media industries—particularly the processes at the intersection of marketing, digital media, and society. My aim in these contributions is to show how new, often hidden dynamics in the media system raise crucial issues for people concerned with the growth of an optimal media system for society.

What would such a system look like? I suggest that a good society should have a balance between what might be called society-making and segment-making media. Segment-making media are those that encourage small slices of society to talk to themselves, while society-making media are those that have the potential to get all those segments to talk to each other. So, for example, Latino Perspectives, a magazine for Latinos living in Phoenix and Tucson, may be considered segment-making; the same with the Univision television network. By contrast, People magazine and CBS television, with their interest in broad national audiences, can be called society-making.

A hallmark of the twentieth century was the growth of both types in the United States. A huge number of ad-supported vehicles—mostly newspapers and magazines—served as a way to reinforce, even create identities for an impressive array of segments that advertisers cared about, from groups of immigrants just establishing a presence in the country to the Jay Gatsby-esque luxury market, and more. At the same time, some ad-sponsored newspapers, radio networks and—especially—television networks were able to reach across these groups. For those who hope for a caring society, each level of media had, and continues to have, its problems. Segment-making media have sometimes offered their audiences narrow, prejudiced views of other social segments. Similarly, society-making media have marginalized certain groups, perpetuated stereotypes of many others, and generally presented an ideal vision of the world that reflects the corporate establishment sponsoring them at the expense of the competing visions that define actual publics. Nevertheless, the existence of both forms of media offers the potential for a healthy balance. In the ideal scenario segment-making media strengthen the identities of interest groups while society-making media allow those groups to move out of their parochial scenes to talk with, argue against, and entertain one another. The result is a rich and diverse sense of overarching connectedness: this is what a vibrant society is all about.

What are the core drivers that push the media toward or away from this development? I argue that in the U.S. and many other societies, the answer can be found in relationships between media and advertisers. To understand the key contemporary dynamics, I’ve focused a good deal of my recent research on the critical transformation taking place in the advertising system’s media-buying-and-planning business. The idea behind media buying and planning is basic: An agency helps its clients (the advertisers) decide where to place paid messages about their products. Thirty years ago the U.S. media plan for most national advertisers was a rather straightforward one negotiated by a few people and carried out by rather inexperienced clerks. The realistic possibilities involved the big three broadcast television networks, local radio stations, magazines, newspapers, and outdoor.

But with the rise of cable, satellite, game consoles, DVDs, and a panoply of internet-connected digital devices, media buying and planning has become a byzantine activity. The complexity of deciding how to think about and reach desired audiences has led agencies to a shift in personnel. Statisticians and computer engineers increasingly sit at the center of the process. They formulate complex computer programs, crunch numbers, and even create new advertising buying-and-selling technologies with the aim of identifying and reaching the best prospects in the best places.

The money used to purchase advertising is huge. Media buyers funnel hundreds of billions of dollars (allegedly close to $500 billion) to media firms in exchange for space and time worldwide.1 A substantial portion (one industry consultancy says 88%2) of the spending runs through a small number of organizations owned by a handful of agency conglomerates most people have never heard of: WPP, Omnicom, Publicis, Interpublic, Aegis, and Havas. And that money covers only the formal advertising. Activities such as product placement and “earned media” (an increasingly wide range of public-relations work that may well include coordinating Twitter feeds and Facebook fan pages) raises the total substantially.

Given the amount of cash involved and the fact that advertising provides such a high level of support for so many media industries, the decisions buyers and planners make influence whether media outlets live and how they live—for example, what audiences they should target and how much they can afford to invest in content. The past decade or so has seen the advertising business take a fundamental turn. The emerging media-planning-and-buying system is predicated on neither society-making nor segment-making advertising media channels. Rather, marketing executives along with their engineers and statisticians are building it increasingly around a belief in the primacy of the chosen consumer. The belief motivates them to sort audiences into targets and waste, focus on the individuals they deem valuable, track those people across as many platforms as possible, and serve them personalized ads and other content anywhere they show up.

They are creating a new marketing-and-media world, and the ramifications may well be profound for the individual, for media practitioners and their products, and for society at large. My hope with this month’s posts is that I can elucidate a few of these issues, tie them to current developments, and encourage policy discussions around them. I look forward to your comments.

References
1 See “Worldwide Ad Market Approaches $500 Billion,” eMarketer, June 13, 2011.
2 RECMA, “Global Overall Activity Billings 2010,” http://www.recma.com/files/RECMA_11103_1310117878200_FREE_EXTRACT_-_7_PAGES_-_July_08_A_.pdf , accessed February 1, 2012.

  February 1, 2012 at 1:52 pm  Tags: advertising, audiences, cable, digital, game consoles, Internet, magazines, marketing, media, newspapers, satellite, targeting, television  Posted in: Advertising   Print This Post   One Comment

The E.U. Data Protection Directive and Robot Chicken

posted by Derek Bambauer

The European Commission released a draft of its revised Data Protection Directive this morning, and Jane Yakowitz has a trenchant critique up at Forbes.com. In addition to the sharp legal analysis, her article has both a Star Wars and Robot Chicken reference, which makes it basically the perfect information law piece…

  January 25, 2012 at 4:32 pm   Posted in: Advertising, Architecture, Civil Rights, Consumer Protection Law, Current Events, Cyber Civil Rights, Cyberlaw, Google and Search Engines, Innovation, Politics, Privacy, Privacy (Consumer Privacy), Social Network Websites, Technology, Web 2.0   Print This Post   No Comments

Censorship on the March

posted by Derek Bambauer

Today, you can’t get to The Oatmeal, or Dinosaur Comics, or XKCD, or (less importantly) Wikipedia. The sites have gone dark to protest the Stop Online Piracy Act (SOPA) and the PROTECT IP Act, America’s attempt to censor the Internet to reduce copyright infringement. This is part of a remarkable, distributed, coordinated protest effort, both online and in realspace (I saw my colleague and friend Jonathan Askin headed to protest outside the offices of Senators Charles Schumer and Kirstin Gillibrand). Many of the protesters argue that America is headed in the direction of authoritarian states such as China, Iran, and Bahrain in censoring the Net. The problem, though, is that America is not alone: most Western democracies are censoring the Internet. Britain does it for child pornography. France: hate speech. The EU is debating a proposal to allow “flagging” of objectionable content for ISPs to ban. Australia’s ISPs are engaging in pre-emptive censorship to prevent even worse legislation from passing. India wants Facebook, Google, and other online platforms to remove any content the government finds problematic.

Censorship is on the march, in democracies as well as dictatorships. With this movement we see, finally, the death of the American myth of free speech exceptionalism. We have viewed ourselves as qualitatively different – as defenders of unfettered expression. We are not. Even without SOPA and PROTECT IP, we are seizing domain names, filtering municipal wi-fi, and using funding to leverage colleges and universities to filter P2P. The reasons for American Internet censorship differ from those of France, South Korea, or China. The mechanism of restriction does not. It is time for us to be honest: America, too, censors. I think we can, and should, defend the legitimacy of our restrictions – the fight on-line and in Congress and in the media shows how we differ from China – but we need to stop pretending there is an easy line to be drawn between blocking human rights sites and blocking Rojadirecta or Dajaz1.

Cross-posted at Info/Law.

  January 18, 2012 at 5:31 pm   Posted in: Advertising, Architecture, Civil Procedure, Constitutional Law, Culture, Current Events, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Innovation, Intellectual Property, Media Law, Movies & Television, Politics, Technology, Web 2.0, Wiki   Print This Post   No Comments

The PII Problem: Privacy and a New Concept of Personally Identifiable Information

posted by Daniel Solove

My article, The PII Problem: Privacy and a New Concept of Personally Identifiable Information (with Professor Paul Schwartz), is now out in print.   You can download the final published version from SSRN.  Here’s the abstract:

Personally identifiable information (PII) is one of the most central concepts in information privacy regulation. The scope of privacy laws typically turns on whether PII is involved. The basic assumption behind the applicable laws is that if PII is not involved, then there can be no privacy harm. At the same time, there is no uniform definition of PII in information privacy law. Moreover, computer science has shown that in many circumstances non-PII can be linked to individuals, and that de-identified data can be re-identified. PII and non-PII are thus not immutable categories, and there is a risk that information deemed non-PII at one time can be transformed into PII at a later juncture. Due to the malleable nature of what constitutes PII, some commentators have even suggested that PII be abandoned as the mechanism by which to define the boundaries of privacy law.

In this Article, we argue that although the current approaches to PII are flawed, the concept of PII should not be abandoned. We develop a new approach called “PII 2.0,” which accounts for PII’s malleability. Based upon a standard rather than a rule, PII 2.0 utilizes a continuum of risk of identification. PII 2.0 regulates information that relates to either an “identified” or “identifiable” individual, and it establishes different requirements for each category. To illustrate this theory, we use the example of regulating behavioral marketing to adults and children. We show how existing approaches to PII impede the effective regulation of behavioral marketing, and how PII 2.0 would resolve these problems.

  December 6, 2011 at 9:20 am   Posted in: Advertising, Articles and Books, Privacy, Privacy (Consumer Privacy), Privacy (Medical), Technology   Print This Post   One Comment

CELS VI: Half a CELS is Statistically Better Than No CELS

posted by Dave Hoffman

As promised, I’m filing a report from the Sixth Annual Empirical Studies Conference, held 11/4-11/5 at Northwestern Law School.  Several of the attendees at the Conference approached me and remarked on my posts from CELS V, IV, and III. That added pressure, coupled with missing half of the conference due to an unavoidable conflict, has delayed this post substantially.  Apologies!  Next time, I promise to attend from the opening ceremonies until they burn the natural law figure in effigy.  Next year’s conference is at Stanford.  I’ll make a similar offer to the one I’ve made in the past: if the organizing committee pays my way, I promise not only to blog the whole thing, but to praise you unstintingly.  Here’s an example: I didn’t observe a single technical or organization snafu at Northwestern this year.  Kudos to the organizing committee: Bernie Black, Shari Diamond, and Emerson Tiller.

What I saw

I arrived Friday night in time for the poster session.  A few impressions.  Yun-chien Chang’s Tenancy in ‘Anticommons’? A Theoretical and Empirical Analysis of Co-Ownership won “best poster,” but I was drawn to David Lovis-McMahon & N.J. Schweitzer’s Substantive Justice: How the Substantive Law Shapes Perceived Fairness.  Overall, the trend toward professionalization in poster display continues unabated.  Even Ted Eisenberg’s poster was glossy & evidenced some post-production work — Ted’s posters at past sessions were, famously, not as civilized. Gone are the days where you could throw some powerpoint slides onto a board and talk about them over a glass of wine!  That said, I’m skeptical about poster sessions generally.  I would love to hear differently from folks who were there.

On Saturday, bright eyed and caffeinated, I went to a Juries panel, where I got to see three pretty cool papers.  The first, by Mercer/Kadous, was about how juries are likely to react to precise/imprecise legal standards.  (For a previous version, see here.) Though the work was nominally about auditing standards, it seemed generalizable to other kinds of legal rules.  The basic conclusion was that imprecise standards increase the likelihood of plaintiff verdicts, but only when the underlying conduct is conservative but deviates from industry norms.  By contrast, if the underlying conduct is aggressive, jurors return fewer pro-plaintiff verdicts.  Unlike most such projects, the authors permitted a large number of mock juries to deliberate, which added a degree of external validity.  Similarly worth reading was Lee/Waters’ work on jury verdict reporters (bottom line: reporters aren’t systematically pro-plaintiff, as the CW suggests, but they are awfully noise measures of what juries are actually doing).  Finally, Hans/Reyna presented some very interesting work on the “gist” model of jury decisionmaking.

At 11:00, I had to skip a great paper by Daniel Klerman whose title was worth the price of admission alone – the Selection of Thirteenth-Century Disputes for Litigation.  Instead, I went to Law and Psychology III.  There, Kenworthey Bilz presented Crime, Tort, Anger, and Insult, a paper which studies how attribution & perceptions of dignitary loss mark a psychological boundary between crime and tort cases.  Bilz presented several neat experiments in service of her thesis, among them a priming survey- – people primed to think about crimes complete the word “ins-” as “insult,” while people primed to think about torts complete it as “insurance.”  (I think I’ve got that right – - the paper isn’t available online, and I’m drawing on two week old memories.)

At noon, Andrew Gelman gave a fantastic presentation on the visualization of empirical data.  The bottom line: wordles are silly and convey no important information.  Actually, Andrew didn’t say that.  I just thought that coming in.  What Andrew said was something more like “can’t people who produce visually interesting graphs and people who produce graphs that convey information get along?”

Finally, I was the discussant at an Experimental Panel, responding to Brooks/Stremitzer/Tontrup’s Framing Contracts:Why Loss Framing Increases Effort.  Attendees witnessed my ill-fated attempt to reverse the order of my presentation on the fly, leading me to neglect the bread in the praise sandwich.  This was a good teaching moment about academic norms. My substantive reaction to Framing Contracts is that it was hard to know how much the paper connected to real-world contracting behavior, since the kinds of decision tasks that the experimental subjects were asked to perform were stripped of the relational & reciprocal norms that characterize actual deals.

CELS: What I missed

The entire first day!  One of my papers with the cultural cognition project, They Saw a Protest, apparently came off well.  Of course, there was also tons of great stuff not written from within the expanding cultural cognition empire.  Here’s a selection: on lawyer optimism; on public housing, enforcement and race; on probable cause and hindsight judging; and several papers on Iqbal, none of which appear to be online.

What did you see & like?

  November 15, 2011 at 3:26 pm   Posted in: Advertising, Behavioral Law and Economics, Conferences, Empirical Analysis of Law   Print This Post   No Comments

Scoring Ourselves to Economic Death

posted by Danielle Citron

In The New York Times, Stephanie Rosenbloom asks readers to “imagine a world in which we are assigned a number that indicates how influential we are.”  That number would help determine our success at getting a job, hotel-room upgrade, break on a service, or free samples at the store.  As Rosenbloom tells us, imagine no more, companies, such as Klout, PeerIndex, and Twitter Grader, are mining our social media activities and assigning us influence scores.  Social scoring is based on our online social network activity, including the number of followers, friends, and the extent to which our online activity gets people moving.  If if you recommend a salon to your social network friends and they follow suit, your good word has two functions.  You’re doing a good thing for your friends and the salon (let’s hope), and now you’re doing good for you.  Because you have inspired people to take action, your influence score may rise.  In the present, people with high scores get preferential treatment by retailers.  More than 2,500 marketers are now using Klout’s data.  Audi will begin offering Facebook users promotions based on their Klout score.  The Las Vegas Palms Hotel and Casino is using Klout data to give highly rated guests an upgrade or tickets to a show.  In the future, those scores could be used by prospective employers, friends, and dates.

On the one hand, this market trend has something important to commend — its visibility.  Consumers can find out their influence scores and work to raise them.  By contrast, the impact of behavioral advertising is often hidden.  We are tracked and scored in databases and have no idea how it shakes out.  Joe Turow’s excellent book Niche Envy explains that consumers know very little about how their data personalizes market transactions.  Some individuals may end up as haves and others as have-nots, but neither group knows the extent of it.  As Turow explains, “our simple corner store is turning into a Marrakech bazaar–except that the merchant has been analyzing our diaries while we negotiate blindfolded, behind a curtain, through a translator.”  On the other hand, the information isn’t perfect and the algorithms secret so people may waste time doing things that they believe will raise their scores but don’t.  But that isn’t really troubling, unless every job or blog post had the effect we hoped it might.  What’s troubling is the trend’s implications for society and culture.  It seems old school to say that people blog, make friends, and engage in online chats to play, experiment, and create culture.  Now, they may feel pressured to do all of these things as a matter of economic necessity.  We may forgo experimentation for product endorsements, and idle chatter for better job prospects.  This makes our children’s choice to engage with social media seem like less of choice than a carefully cultivated necessity.  It also spells far more trouble for people who are already victimized, those who cyber mobs target with lies, threats, technical attacks, and privacy invasions.  They go offline or write under pseudonyms to protect themselves.  We now know that those choices (if we can call it that) cost more economically than they already do aside from the many other costs that my work discusses.  I imagine there’s more to this influence score story but I thought I’d share my initial take.

  June 28, 2011 at 6:24 pm   Posted in: Advertising, Architecture, Culture, Cyber Civil Rights, Cyberlaw, Google & Search Engines, Privacy, Privacy (Consumer Privacy), Web 2.0   Print This Post   3 Comments

A Gummy Lawsuit

posted by Dave Hoffman

A man has bad teeth.  He chews Trident Xtra Care gum, which promises that it “Strengthens and Rebuilds Teeth” by “fill[ing] in the tiny crevices where cavities can form and leav[ing] teeth more resistant to plaque acids.”  His teeth remain rotten.  It’s America.  So he sues for deceptive business practices, and seeks to represent a class of gum purchasers.   You name the defenses.

  July 28, 2010 at 9:46 am   Posted in: Advertising, Consumer Protection Law, Contract Law & Beyond   Print This Post   5 Comments

More on Pizza and Puffery

posted by Lisa Fairfax

Like Nate, the Domino’s puffery commercial caught my eye.  In addition to his concerns, the commercial prompted me to think about at least two other issues related to the commercial’s effectiveness.

First, given that Domino’s only has a couple of seconds to get across its message, do most viewers really appreciate the reference to puffery?  To be sure, Domino’s loves it so much that they have dedicated a whole site to the “Stop the Puffery” idea and “calling out Papa John’s”.  Moreover, it seems to be garnering a lot of buzz on legal blogs, such as these thoughts on ContractsProf Blog and Above the  Law.  But as those posts reveal, the initial puffery reference stems from an old case between Papa John’s and Pizza Hut where Papa John’s essentially admits that its “Better Ingredients. Better Pizza” slogan is puffery in order to avoid Pizza Hut’s claim that ads using the slogan were false and misleading.   Interestingly, the Fifth Circuit case notes that “Pizza Hut does not appear to contest the truthfulness” of Papa John’s factual assertions that Pizza Hut used frozen dough, made its dough using “whatever comes out of the tap,” and made its sauce from remanufactured tomato paste.  Instead, Pizza Hut suggest that the ingredients make no difference in terms of taste.   In any event, the Fifth Circuit concludes that Papa John’s slogan is non-actionable puffery and thus did not really impact people’s buying decision.  From Domino’s perspective, calling Papa John’s slogan puffery is supposed to get across the idea that the slogan is “NOT FACT”–or in Papa’s John’s words, involves claims about “common sense choice.”  But it is not clear how much, if any, of that gets across in the ad. 

Second, wasn’t it just last month that Domino’s launched an ad strategy based on a mea culpa where company executives not only quoting comments likening Domino’s crust to cardboard and the sauce to ketchup, but also comments like “worst excuse for pizza I ever had,” and “totally devoid of flavor”?  The apology strategy seemed both bold and risky.  Though one could argue that it is only a few steps removed from ads that offer “new and improved” products, except those ads don’t explicitly admit that the old product was relatively worse.  Nevertheless, Domino’s apologetic strategy seems at odds with the attack strategy in these puffery commercials.   Indeed, the apology appears to be aimed at fostering good will and a positive outlook.  Moreover, the apology seems to be at the very least an implicit acknowledgement that Domino’s pizzas (and ingredients) were worse than their competitors.  So the puffery attack seems a bit hard to swallow. 

But in the interest of being honest, I will admit that I have not yet tasted the new and improved Domino’s pizza, and hence can’t really say anything about the pizza. . .just the pizza ad.

  February 18, 2010 at 7:31 am   Posted in: Advertising, Contract Law & Beyond   Print This Post   4 Comments

Puffery and Pizza

posted by Nate Oman

In this commercial, Domino’s Pizza offers us a definition of “puffery.” So does the claim, “Our pizzas taste better, and that’s not puffery. That’s proven.” constitute a warranty?

(And don’t forget to read “The Best Puffery Article Ever”)

  February 11, 2010 at 8:25 am   Posted in: Advertising, Contract Law & Beyond   Print This Post   13 Comments

Marketing and Kids

posted by Deven Desai

Although I tend to prefer less regulation in many cases, the pictures below seem to call for a little more discussion about how products are marketed to kids. Candy in that mimics many of the attributes of adult products such as cigarettes probably makes it easier for a kid to think they ought to try the real thing and maybe soon. As I have noted before, the warning labels on cigarettes in other countries are quite a bit more stark (some simply state in large font “Smoking kills”.

As a trademark point, one might wonder whether an infringement action or maybe a dilution one would work. One might think cigarette makers have entered the cigarette entry market (Anyone remember Joe Camel?). Dilution by blurring may apply too, but a tarnishment claim may be more difficult as I think candy (absent those pesky four out of five dentists) is still seen as a step up from tobacco. All kidding aside, even if one argues that adults can make informed decisions, it seems to me that packaging candy to look quite similar to major cigarette brand packaging is an error. You make the call about these images and what, if anything, should be done.

The ones with cellophane wrapping look even more like a training kit to me.

  December 23, 2009 at 12:20 pm   Posted in: Advertising   Print This Post   2 Comments

Are T.V. Programs Killer Apps?

posted by Deven Desai

Networks. In my youth, the term was most familiar to me as the word for large, national television stations. NBC was at the bottom of a small heap in the late 1970s. If I recall correctly, Johnny Carson and the Tonight Show supported most of the network in general. Now remember, there were only three networks and some local stations, yet NBC was unable to do well. Then NBC tried a show that I believe many thought would not work or have little success, The Cosby Show. Who knew? That show took off and NBC parlayed The Cosby Show into 20 years of dominance. Family Ties was OK but nothing brilliant. Nonetheless, with Cosby as the anchor, NBC tested and launched series such as Cheers, Friends, and ER with Wings and other decent fillers in between. In a sense NBC seemed to have cross-subsidized its programming on Thursday and even other nights (by launching and then moving series). In addition, that lead allowed NBC to promote all its other programming. Then came CBS which was in the doldrums and it tried a little thing called Survivor. Boom! CBS took off. Many OK, and some not so good shows have done well on CBS. FOX arguably uses American Idol to achieve similar results. NBC struggles so much that some rather good shows are lost and like the proverbial tree they fall but no one hears them.

The analogy is far from perfect (for one I am not certain that T.V. shows require large numbers to be useful then again they seem to do well in part because one likes to be able to talk about shows around the so-called water cooler), but I wonder if Yahoo!, AOL, Google, MSN, Facebook, and Twitter are in some ways similar to the T.V. networks. One killer app and the site grabs a ton of people who stick and may use other products from the network. Users can click away and can use the services in a simultaneous way in that one can work with one service at time or have multiple services running but not miss programming as was the case before the VCR. There are many open questions in this arena. For one, how easily can one switch from one service to another? In addition, are there similar problems regarding limited access (i.e., T.V. and cable can carry only so many channels but the Internet has greater capacity (though depending on the status of the network not as unlimited as some might argue)? A key issue in my mind is the problem of knowing that a good service or program exists. The Internet appears better than T.V. at letting users quickly decide what they like, and the information seems to spread rather well. Still, I am sure there are great services that I am missing (a recent one that someone mentioned to me was Dropbox). One often doesn’t know what is good until those pesky advertisers and marketers push information. My recent research has been looking into the way trademarks as brands have functioned on several levels, but one thing that jumps out is that brands are two-way information devices. Advertising is a major piece of that puzzle in one direction; the Internet and commentary is a major piece of the puzzle in the other direction (trademark law handles this idea poorly). Ironically, just as T.V. and print cry out because ads are being skipped, the Internet steps in and seems to deliver better returns on ads. The new difference is that in some cases those who pay for and create the content that was subsidized by ads are not seeing that money. In other words, as Paul Duguid has shown in his work and I have found in my research, early brands can be understood as having a big role in supply chains; we may need to think of modern networks in much the same way. There are many details and differences to address in the Internet arena, but I think these ideas will be part of how we sort out some of the online competition issues in play today.

  December 7, 2009 at 2:36 pm   Posted in: Advertising, Culture, Google & Search Engines, Intellectual Property, Trade   Print This Post   One Comment

IP Law and the Presidential Sneakers…

posted by Jacqueline Lipton

President Obama is likely the first true “celebrity president”, at least the first in our time, in the sense that people see opportunities for making money from his persona and likeness.  Early on in the presidency, his office made some remarks to the extent that they were working on a policy asking people to be respectful of the president and his family in restraining some of these commercial impulses.  Of course, all of this raises the fine line between free speech and personality rights – a topic much debated on the cyberprof listserve in the early days of this presidency.

In this vein, I couldn’t resist posting an ad I came across last night that squarely raises these legal issues.  A company that appears to be in Michigan (although they do not give their postal address, but do require Michigan residents to pay sales tax on purchases from their website) has set up an “Obama shoes” website.  On this website, you can purchase Obama sneakers, backpacks, and basketballs.

The website uses video clips from one of Obama’s speeches and refers to itself as selling merchandise that is inspirational to young folks and that is intended to commemorate Obama’s inauguration. Thus, it obviously intends to juxtapose free speech interests in the inauguration against the commercial use of Obama’s name and likeness.

There are some other interesting little sidenotes about this business venture that suggest the people who set it up sought at least some legal advice before doing so.

1. They used the domain name “obamashoes.tv” presumably either because they couldn’t get a “better” domain name or because they wanted to avoid claims under the Uniform Domain Name Dispute Resolution Policy. They could argue that even if Obama’s name operates as a TM, they have not used his actual name in the domain name, but have added “shoes” to the end of it so no one will think it’s an authorized Obama website.

2. They include a disclaimer on their webpage to the effect that: “Obamashoes.tv is a private entity and makes no claim of affiliation or endorsement by President Barack Obama or his campaign for office.”

3. Interestingly, there is also a disclaimer on their FAQ page about the design of the sneakers themselves. “Q. Why does [sic] the shoes look like Nike Air Force Ones (AF1) and the Jordan Brand?
A. These design is [sic] been proven to be commonly preferred by most Adults & Children (black or white).” Now, I personally don’t know anything about sneaker designs, but I assume this is intended as a preemptive strike to ward of claims in trademark, trade dress, and/or design patent with respect to the actual design of the shoes.

So, interesting business model…
Legitimate free speech? Or intellectual property law infringement as far as they eye can see?

  May 19, 2009 at 9:16 am   Posted in: Advertising, Consumer Protection Law, Culture, Cyberlaw, First Amendment, Intellectual Property, Politics, Technology, Uncategorized   Print This Post   No Comments

The Blogosphere Running on Fumes?

posted by Dave Hoffman

Gandelman’s roundup of reactions to Pajamas Media’s shuttering of its blogging network is worth checking out. Of the various reactions I’ve seen, from anger at incompetence, to anger that PJM wasn’t right-wing enough, I think the best is by Dennis the Peasant, who republished an old post about how to make money online:

The mistake I had made was assuming that some good household data was enough information to get an advertiser to act. It isn’t. What will convince advertisers to advertise on blogs is convincing data that the decision makers for their products are at those blogs. Yeah, high household income is something advertisers like, but if it isn’t coupled with access to the decision maker they have no reason to spend with you. Their job is to convince the decision maker to buy their product. If you don’t deliver that person, they can’t do their job. If they can’t do their job, they are going move on from you to someone who will enable them do their job.

So think about this: What kind of advertising do you see on the Sunday morning talk shows? What kind of advertising do you see in the politically-oriented magazines (as opposed to news magazines)? See much in the way of advertising for computers, cell phones, video games or cameras?

This strikes me as intuitively quite right, although I’ve previously written that advertising on some blogs might create a beneficial exposure effect. (Perhaps this argument is too self-serving to be believed.)

Does the failure of political blogging to make money have any implications for the legal blogosphere? I doubt it, because the legal blogosphere, with one exception I can think of, is basically a nonprofit enterprise.

The Caron Blog Empire has a deal with Thompson-West that seems to fit with the theory, as law professors are the primary decision makers for casebooks. (Which, of course, explains why such books are routinely overpriced). But I doubt that the law professor blog network is producing a rush of revenue. Everyone else is subsidized, either directly by their underlying practices or indirectly by their law schools. (Even Volokh appears not to be currently running ads).

The only exception is Above the Law. Today they are running credit-check & job search ads. Appropriate.

(Image Source. A Ford Pinto. Go buy it, if you are feeling brave.)

  February 2, 2009 at 1:19 pm   Posted in: Advertising   Print This Post   One Comment

Cultural Difference

posted by Deven Desai

This is a display in a duty free shop in Guadalajara.

My guess is that the disclaimers are required by law and the multi-pack box cannot be otherwise offered. Still the size of the display and the choice of putting the boxes next to the sign with the sale information rather than just a sign is interesting. Maybe they had to do so or maybe folks are inured to the warnings. Either way it startled me and made me think this display is free market meets information.

  August 21, 2008 at 8:03 pm   Posted in: Advertising   Print This Post   One Comment

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