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FTC staff issued a statement today proposing four “self-regulatory” principles to guide businesses engaged in online behavioral advertising. FTC staff also seeks public comments on these principles as well as additional information on what other uses businesses are making of online tracking data. Interested parties can submit comments by February 22, 2008.

The statement, titled “Online Behavioral Advertising: Moving the Discussion Forward to Possible Self-Regulatory Principles” follows from the FTC’s town hall meeting held in early November 2007. There, FTC considered privacy issues raised by behavioral advertising and heard from consumer interest groups and businesses’ alike.

Kids like social networking sites, most notably MySpace and Facebook. So it is not surpising that law enforcement is scrutinizing how the sites protect children. Recent subpoenas issued to Facebook by New York Attorney General Andrew Cuomo and New Jersey Attorney General Anne Milgram are illustrative.

Both subpoenas sought information about Facebook’s Internet safety and security policies. The New York subpoena, issued last month, also sought information concerning Facebook’s complaint resolution procedures. In its subpoena cover letter to Facebook, Attorney General Cuomo noted Facebook’s public representations concerning how it responds to reports of pornographic material and inappropriate contact with minors.  It also described its undercover investigation of Facebook. According to the letter, the investigation revealed pornographic and other inappropriate content readily available on the site. In addition, after investigators set up profiles as young teenage users, they received inappropriate sexual advances. The investigators filed complaints about these issues through Facebooks’ complaint procedures. The letter notes various instances of non-responsiveness or delayed response to such complaints. The New Jersey subpoena issued earlier this month, described here, sought information from Facebook concerning convicted New Jersey sex offenders that Facebook has identified as site users.  Facebook previously informed the New Jersey Attorney General it had removed sex offenders with profiles matching individuals listed on the New Jersey sex offender registry. Attorney General Milgram also sent letters to eleven other social networking sites requesting they compare their registrants against the state’s sex offender list.

Proskauer Rose LLP has just released “Proskauer on International Litigation and Arbitration: Managing, Resolving, and Avoiding Cross-Border Business and Regulatory Disputes.” The online guide is a practical reference work for businesses and practitioners; it explores best practices and creative yet practical approaches to manage, resolve, and avoid controversies affecting multiple jurisdictions. The 28-chapter guide is available free in e-Book format at www.proskauerguide.com. It includes a thorough chapter on international privacy law.
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In a decision that will significantly impact the ability of the government to access electronic communications, the United States Court of Appeals for the Sixth Circuit on June 18, 2007, affirmed a district court’s issuance of a preliminary injunction prohibiting governmental entities from obtaining Internet Service Providers’ (“ISP”) subscribers’ e-mail communications unless the subscriber first receives prior notice and an opportunity to be heard.  Warshak v. United States, No. 06-4092 (6th Cir. 2007). The Court found unconstitutional the Stored Communications Act (“SCA”) provisions allowing Government seizure of such communications without prior subscriber notice, because the court order could be issued without a showing of probable cause that the subscriber had committed a crime. The Sixth Circuit found that individuals have an expectation of privacy regarding the contents of emails sent or stored through an Internet Service Provider (ISP).

Lawmakers in six states have responded quickly to the massive data breach at TJX Companies, Inc. with various bills designed to strengthen merchant security and/or render companies liable for third party companies’ costs arising from data breaches. These latest bills – introduced in California, Connecticut, Illinois, Massachusetts, Minnesota and Texas – represent a new front of state legislative activity to regulate privacy and data security and expand requirements beyond the current data breach notification and data security laws that many states have enacted in recent years. To date, Minnesota is the only state to enact such legislation, which was signed into law by its Governor on May 21, 2007.

Under legislation recently proposed in California, retailers doing business in the state would be subject to enhanced data destruction requirements, and all businesses would be affected by new data breach notification requirements.  In the wake of the TJX Companies data breach, which may have affected more than 46.2 million credit and debit cards, California Assemblyman Dave Jones introduced revised A.B. 779.  That legislation reiterates that retailers are subject to the same data safeguard requirements as other businesses that maintain customer records or own or license personal information, while significantly truncating the period of time retailers may retain personal information of customers.  The bill also would revise the data breach notification laws applicable to all businesses that own or license personal information.  

Last week, a panel of the Ninth Circuit Court of Appeals held that in the absence of an announced monitoring policy, the mere act of connecting a computer to a network does not extinguish a user’s reasonable expectation of privacy, under the Fourth Amendment, in the contents of his or her computer. The panel announced its holding in United States v. Jerome T. Heckenkamp, Nos. 05-10322 and 05-10323 (9th Cir. April 5, 2007), wherein it upheld the introduction of evidence obtained by University of Wisconsin employees through remote and direct access of a student computer attached to a university network. Although it recognized the defendant’s reasonable expectation of privacy, the panel upheld the lower court’s admission of evidence under the judicially-created “special needs” exception to the Fourth Amendment because the alleged hacking posed an immediate threat to the university network and the searches were not conducted for a law enforcement purpose.   

Welcome to the Proskauer Privacy Law Blog. Proskauer’s Privacy and Data Security Practice Group is tremendously pleased to bring you what we hope will become a trusted source for summary and analysis of breaking legal developments in the evolving field of privacy and data security law. This blog is designed…