Motion Picture Association of America–Shaken, Not Stirred

In what sounds like a James Bond spy caper, an MPAA executive allegedly paid a hacker $15,000 to break into a server and snatch copies of emails. The hacker accomplished the dirty deed and emailed the MPAA dozens of pages of material—ostensibly for use by the MPAA in its copyright infringement action against a company whose servers were involved in file sharing. The MPAA released a statement that “The information was obtained in a legal manner from a confidential informant who we believe obtained the information legally.”

Now a federal appeals court in California is determining if a lower court ruling should re-define online privacy protection by interpreting “intercept” under the 1968 Wiretap Act. The case, Bunnel v. Motion Picture Association of America, revolves around a ruling a year ago that held the hacker didn’t really “intercept” emails because they were in storage—not technically in transit. The lower court ruled the hacker’s “…actions did not halt the transmission of the messages to their intended recipients. As such, under well-settled case law, as well as a reading of the statute and the ordinary meaning of the word ‘intercept,’ Anderson’s acquisitions of the e-mails did not violate the Wiretap Act.” In other words, “grab copies of emails sitting on your server for a nanosecond” and it’s not wiretapping. Stay tuned!

Italian Authorities Aren’t Loyal to Customer Information Used for Behavioral Marketing

A new provision of the Italian data protection law (Loyalty Cards, issued Feb. 24, 2005), is getting a workout. The Data Protection Authority fined a well-known supermarket chain €54,000 for not giving customers adequate information regarding use of personal data. The retailer issued loyalty cards—for shoppers to obtain discounts and rewards—and gathered customer names, email and cell phone numbers (personally identifiable information) and behavioral marketing information (spending habits and locations). Customer profiles were then evaluated and used to create targeted ad campaigns. The retailer didn’t ask customers for consent for all of these uses—a violation of the data protection law.

In Italy, if customer information is not used solely for operating the loyalty program, but for customer profiling and advertising, the consumer must be told and must give consent. While consent is not needed to carry out contract obligations needed to fulfill the loyalty reward program itself, collecting more information than needed for that purpose or using information for other purposes requires specific consent. Is this true elsewhere? In Europe? The United States? Canada? Latin America? Asia? New Zealand? Call me and find out, or read my bio.

Cyber Attacks? It’s Not Just War Games Anymore

Is a cyber attack an act of war? Analysts reported that while the Russian military was acting against the Georgian republic, Georgian websites were also under attack. Cyber warfare can exploit security gaps to take control of civilian infrastructure, such as power grids, as well as government websites and military command and control operations. It has long been known that cyber-weaponry could supplement (and sometimes replace) traditional military activities. But when does a cyber-attack itself constitute an act of war? (We all appreciate the notion of “war” as a historical concept is and continues to change.) Tactics such as urban warfare, bioterrorism and suicide bombers have caused grave concern, not only over government’s ability to deter violent and damaging non-traditional acts of war, but also how to respond when they occur. A big challenge in the cyber warfare world is identifying who did it. In 2007, Estonia asked NATO to come to its defense when a cyber attack disabled government and bank websites. Apparently in 2008 we didn’t need a cyber attack to bring down some of our financial institutions (sorry, couldn’t resist). Question—how does one respond to a cyber attack—with bullets or chips?

Data Breach. Cause for Alarm or a Big Yawn?

By August 2008, there were more publicly disclosed data breaches among U.S. businesses than for all of 2007. More information is created, flowing and stored by commercial enterprise than ever; more clever schemes are being hatched by criminals for hacking or disrupting information; employees don’t appreciate the value of assets you can’t feel; and consumers are befuddled by a maze of privacy notices, data theft notices, credit report advertisements, and scare tactics launched by advocacy groups—well intentioned though they may be. More than 40 U.S. states have laws requiring disclosure of data breaches. If these were intended to create incentives to prevent data breaches and reduce occurrence, how do we explain the steady rise? Are the laws ineffective? Are businesses accountable beyond some adverse publicity, once they provide legally mandated disclosure? Have we become jaded by news reports, privacy and breach notices as just so much junk mail? In the credit card world, consumers generally have a maximum $50 liability if a card is lost or stolen. In situations where there are no real time approvals, credit card companies take the risk. In that environment, a business decision is made to accept certain loses because the potential revenue generated by the business model yields a greater reward. In the world of consumer privacy and personally identifiable information disclosure, who is taking what risk? Studies for years indicate IT professionals appreciate that digital crime—theft of intellectual property, piracy, theft of trade secrets, customer data or employee information—is a problem. Many companies may not even know their security is breached and others have little incentive to solve the problem. Need more information? Come to my web page, contact me and tell me what you think. Call if you need help with a policy, a position or an understanding of your legal rights and obligations. We can help.

Gas Price Giving You Gas?

Reaching for that bottled water? At an average of $1.49 per bottle, that comes to $21/gallon. You could supercharge your tank with Starbucks coffee at $12+ per gallon. Better yet, Bud Light at $9.73 per gallon looks like a bargain—although good ol’ Vitamin D milk checks in at only $3.50/gallon. Now when compared with Absolut Vodka at about $58 per gallon or Chanel No. 5 perfume at $25,600 per gallon—well gasoline doesn’t sound all that expensive, does it?

Useless But compelling Facts – September 2008

In times of turmoil, everyone seeks to blame someone else. Especially with our financial institutions in jeopardy, everyone seems to be passing the buck. One might think the expression derives from the almighty dollar, or from a hunting expedition that forgoes any stag with insufficient points, or that someone saved from the brink, instead of “kicking the bucket” might pass the buck. Sorry, all of these are wrong. So where did the expression “passing the buck” or “the buck stops here” come from? Think you know, send your answer to me.

Useless But Compelling Facts – August 2008 Answer

Last month we asked you to tell us how Hicks was awarded Olympic Gold in the 1904 games, even though he didn’t actually cross the finish line first. This month’s prize winner comes to us from The Hague, Netherlands. where Cor van den Beukel at Shell Information Technology correctly noted that Frederick Lorz appeared at the finish first—unfortunately, it was discovered he enjoyed a leisurely ride in a car from mile 9 to 18, and with Lorz disqualified, the medal went to Hicks. Congratulations, Cor!!

Wish I’d Said That (NOT!)

“The worst of the impact on the financial-services industry is behind us.” Richard Fuld, CEO of Lehman Brothers, April 15, 2008, after the Annual Meeting.

Clarence Darrow

“True patriotism hates injustice in its own land more than anywhere else.”

Investigating Online & Interactive Advertising

The U.S. Congress appears determined to investigate online advertising. Early this month, the House Energy and Commerce Committee issued a letter to more than 30 companies, and what began as an inquiry into how Internet service providers use network data to target advertising, has morphed into a fishing expedition into all kinds of interactive advertising. Most notably, and despite urging by the FTC to allow self-regulation to take hold, the Committee does not differentiate between personally identifiable information and non-identifying, anonymous data used for traffic metrics, ad insertion and other common advertising purposes. Lumping different kinds of information together could needlessly undermine marketing as it has been practiced for decades. The “tailoring” of advertising, in the Committee’s words, based on consumers’ behavior and media consumption patterns, has been at the heart of marketing for as long as marketing has been around.

More disturbing are presumptions that “privacy” rights are being violated by any and all forms of behavioral or targeted marketing. Advocacy groups opposed to commercial communication seek to promote an implicit, yet fundamental redefinition of personal privacy—i.e., anything that derives from peoples’ activities, no matter how distanced or anonymous. Taken to logical conclusion, any academic, commercial or journalistic observation of consumer activity could fall under regulatory restrictions under such a framework. Not surprisingly, the FTC—with its long history of regulation of advertising practices—has argued before Congress that self-regulation is likely to be an effective means of protecting consumers’ real privacy interests. According to testimony by FTC Consumer Protection Bureau Director Lydia Parnes before the Senate Committee on Commerce, Science, and Transportation this July, the FTC is “cautiously optimistic that the privacy concerns raised by behavioral advertising can be addressed by industry self-regulation.” Nevertheless, in the letter released this month and in three previous inquiries over the past few months, both the House and the Senate seem to be searching for a rationale to regulate. Stay tuned.