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Digital Media, Technology & Privacy Alert >> Internet Vendors Now Face New Tax Obligations in Massachusetts - Alert - 10/05/2017

Internet marketers and vendors with customers in Massachusetts, Ohio and Rhode Island should pay particular attention to the new regulation and legislation that expands the tax nexus for out-of-state vendors making Internet sales in those states. Vendors should consult with a tax professional in order to evaluate if they meet the sales and transaction thresholds, and, if so, bring their sales tax practices into compliance with the new legislation. In addition, Internet vendors with operations in other states should recognize that a similar regulation or statute may be proposed or enacted in their state and prepare accordingly.

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Advertising, Marketing & Promotions Alert >> FTC Reviews Rules, including CAN-SPAM, to Keep Pace with Changing Times - Alert - 07/17/2017

The FTC has announced its plans to review the Picture Tube Rule, the Textile Rules, the Energy Labeling Rule and the CAN-SPAM Rule. These rules aim to protect consumers while promoting healthy competition between businesses. The FTC's regulatory review is part of its ongoing effort to stay current with technology without burdening businesses with outdated and unnecessary regulations. The FTC is seeking public comment regarding the costs and benefits of each rule to identify where they should make modifications or rescissions.

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Digital Media, Technology & Privacy Alert >> Big Changes to Canada's Anti-Spam Law Effective July 1 - Alert - 06/29/2017

Although advertisers may not have to be concerned with private lawsuits at this time, they still must comply with CASL – and the Canadian Radio-television and Telecommunications Commission retains the authority to enforce the law, and has been actively doing so for the past three years. With the elimination of historical implied consent, advertisers must obtain express consent to send CEMs to such addresses or cease sending CEMs to people who do not provide express consent or who withdraw it.

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Digital Media, Technology & Privacy Alert >> T Minus 1 Year Until GDPR: Are You Ready for Take Off? - Alert - 05/24/2017

It remains to be seen what will happen after the GDPR becomes effective on May 25, 2018. The GDPR compliance roadmap can be helpful for any organization that collects or processes personal data, whether or not an organization in or outside of the EU believes it is subject to the GDPR. With just one year of the two-year implementation period left, organizations should be well on their way to preparing for the impact of the new regulation.

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Intellectual Property Litigation Alert >> Breach Of Contract Claims Allowed For Alleged Open Source License Violations - Alert - 05/18/2017

A recent California decision allowed breach of contract claims for GPL violations in connection with the use of open source software. As the decision shows, reliance on arguments that the GPL is not a contract or that corresponding contract claims are preempted by copyright law may prove misplaced. Accordingly, businesses should carefully consider contract law implications when licensing and using GPL-governed code.

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Digital Media, Technology & Privacy Alert >> Trump Affirms Congress’s Repeal of the FCC’s Broadband Privacy Rules - Alert - 04/04/2017

Last fall, the FCC and FTC both hailed the FCC privacy rules. After the change in administrations, the FCC and FTC both agreed to rescind such rules. Therefore, it remains to be seen how privacy and data security will be regulated going forward. Companies in all industries should keep abreast of developments.

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Digital Media, Technology & Privacy Alert >> FTC’s New Staff Report Applies Privacy Principles to Cross-Device Tracking - Alert - 01/31/2017

Between the new FTC guidance and pending DAA enforcement, cross-device tracking is an issue that promises to be of increasing importance for the online advertising industry as the year progresses. Publishers, ad tech companies, advertisers, agencies and other members of the ecosystem should make every effort to understand the changing regulatory landscape and how to remain in compliance should they choose to take advantage of these technologies.

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Digital Media, Technology & Privacy Alert >> FTC Report on 'Sharing' Economy Highlights Business Issues and Potential Regulatory Concerns for Platforms, Buyers and Sellers - Alert - 11/28/2016

The FTC's interest in sharing economy platforms is not surprising, given the industry's reliance on the collection and use of vast amounts of data. Each participant in this ecosystem, from platforms to buyers to sellers, has unique privacy, data security and disclosure needs and requirements. Therefore, all participants in the sharing economy should reexamine their practices based upon the issues highlighted in this report and numerous prior FTC reports.

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Digital Media, Technology & Privacy Alert >> Enforcement of DAA Cross-Device Guidance to Begin on February 1, 2017 - Alert - 11/03/2016

Industry members that engage in data collection and use covered by the DAA Principles but that have not yet fully complied with the DAA cross-device guidance should take careful notice of the February 1 deadline and should upgrade systems, policies and practices now so that a consumer’s choice can be honored, if they have not yet done so.

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Digital Media, Technology & Privacy Alert >> A Fallen Warrior in the Game of Mobile Privacy  - Alert - 10/20/2016

Teams, leagues and businesses seeking to take advantage of mobile technology need to carefully consider how to implement mobile technology offerings with transparent disclosures, clear consent and built-in privacy protections. Companies should also take advantage of self-regulatory programs, trade associations and industry organizations, all of which can provide guidance on best industry practices.

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SC Magazine // A New Ethics?: Moral Compass - Press Mention - 10/03/2016

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Litigation Alert >> Internet Retailers Beware: NJ Truth-in-Consumer Contract, Warranty and Notice Act Impacts Online Terms and Conditions - Alert - 07/21/2016

New Jersey’s TCCWNA allows consumers to recover damages or civil penalties from retailers who use terms and conditions that violate the consumers’ clearly established legal rights. With the New Jersey courts’ generally broad, consumer-friendly construction of this act, and a statutory penalty of $100 per violation regardless of whether the consumer has suffered any actual harm, the act increasingly has become a favorite among plaintiffs’ class action counsel. Online retailers should actively review their terms and conditions, both to ensure compliance with New Jersey law and to be certain that those terms are constructed so as to afford the maximum protection available against these class action claims.

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Digital Media, Technology & Privacy Alert >> EU-U.S. Privacy Shield to Start Accepting Certifications August 1  - Alert - 07/13/2016

As of August 1, 2016, U.S. companies will be able to register to be on the Privacy Shield list and self-certify that they meet data protection standards set out by the new arrangement that exceed those under the old Safe Harbor. Businesses will need to carefully review these standards to ensure that they have mechanisms in place to ensure compliance, including procedures to respond promptly to consumer complaints and to cooperate, where necessary, with European Data Protection Authorities. Company registrations will need to be renewed every year.

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Digital Media, Technology & Privacy Alert >> Brexit May Complicate Privacy Issues for Ad Tech Companies - Alert - 06/30/2016

In the short term, there may not be many (or any) changes to privacy and data practices in the United Kingdom following Brexit. However, as the process proceeds and the EU further develops and implements new standards, it is possible that a divide will develop and expand between regulatory schemes in the United Kingdom and the rest of the EU. Companies operating in European jurisdictions should continue to monitor developments and be prepared for a more complicated privacy and data security compliance landscape to develop in Europe.

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SC Magazine // Breach: Before and After - Press Mention - 03/01/2016

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Digital Media, Technology & Privacy Alert >> Agreement on EU-U.S. Privacy Shield to Replace Safe Harbor Faces Hurdles - Alert - 02/04/2016

As with any negotiation, there are bound to be critics on both sides of the spectrum, and the new Privacy Shield has no shortage of critics. However, most parties agree that something must be done to balance the interests of EU citizens and the commercial needs of companies on both sides of the Atlantic. Some regulators have agreed to another respite until the end of February, in order to consider this deal, even though full implementation of the program will likely take longer. Other means of complying with the Data Protection Directive should continue to be considered. Meanwhile, companies that are involved in the transfer of EU personal data to the United States must watch developments in order to determine how to comply with the new Privacy Shield.

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Digital Media, Technology & Privacy Alert >> New FTC Report Highlights Ubiquity of Big Data and Contrasts Negative Impact Versus Substantial Benefits of Big Data - Alert - 01/11/2016

Given how the battle lines have been drawn in the big data debate, privacy advocates will likely assert that the report does not go far enough in protecting the privacy rights of individuals, while commercial interests will assert that the FTC does not sufficiently recognize the substantial economic and societal benefits to be reaped from big data. Going forward, every business should carefully evaluate their collection and/or use of big data in light of these issues.

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Digital Media, Technology & Privacy Alert >> Wyndham Settles FTC’s Data Breach Case After Ruling Reinforced FTC’s Authority - Alert - 12/17/2015

Wyndham’s settlement brings to an end one of the most significant challenges to the FTC’s broad authority to regulate data security matters (for another challenge, see a previously authored D&G alert here). The result is an emboldened FTC and new data security standards for companies to consider. The FTC, through its successful pursuit of Wyndham, is sending a clear message to companies that collect consumers’ personal information that they need to be vigilant in ensuring that they have sufficient data security practices and procedures in place to avoid FTC scrutiny in the event of a data breach.

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Digital Media, Technology & Privacy Alert >> Failure to Prove Probability of Harm from Alleged Data Breaches Dooms FTC’s Complaint - Alert - 12/02/2015

If left unchallenged, the ALJ’s decision in the LabMD action could significantly change the standard of reasonable security used by the FTC to determine whether a practice is unfair under Section 5 of the FTC Act, and may make it harder for the FTC to bring similar actions in the future without additional facts. However, the FTC has indicated that it may appeal this decision. Regardless, businesses should take every reasonable step to try to ensure that their data security practices are, in fact, in compliance with all appropriate standards and legal requirements.

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Digital Media, Technology & Privacy Alert >> New DAA Guidance Emphasizes Applicability of Transparency and Control to Cross-Device Advertising Practices - Alert - 11/30/2015

The DAA’s new guidance is the first self-regulatory foray into the cross-device tracking practices. Issued on the same day as a Federal Trade Commission workshop on “Cross-Device Tracking,” the industry is again hoping that staying ahead of the curve and establishing best practices to address the privacy concerns of regulators and consumers will keep lawmakers at bay.

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AdExchanger.com: Big Data Discrimination: Is The Industry Responsible? - Published Article - 10/15/2015

by Gary A. Kibel

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Digital Media, Technology & Privacy Alert >> The Rise of Ad Blocking - Alert - 10/14/2015

As ad blocking technologies continue to evolve at ever-increasing speed, purely legal solutions will have trouble keeping pace. While legal solutions will surely play a role, in the short-term, agencies, marketers and publishers should consider implementing practical solutions to ensure ad content is not blocked.

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Digital Media, Technology & Privacy Alert >> EU Court of Justice Strikes Down U.S.-EU Safe Harbor for Data Sharing  - Alert - 10/07/2015

Companies that transfer personal data from the EU to the U.S. must now consult with counsel to consider the effect of the Court of Justice’s decision on their business practices and whether they should rely on alternatives to the Safe Harbor, including model contract clauses, binding corporate rules and direct consent to permit them to continue transferring personal data to the United States.

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Digital Media, Technology & Privacy Alert >> Federal Circuit Court Reinforces FTC's Authority to Act in Data Breach Cases - Alert - 08/27/2015

For the past decade, the FTC has been bringing administrative actions under the Act against companies with allegedly deficient data security practices that failed to protect consumer data against hackers; the vast majority of these matters have ended in settlement. Now, with the Third Circuit's decision affirming the FTC's authority to hold companies accountable for failing to safeguard consumer data, one can expect an emboldened FTC to take even more action. All companies, especially those that store or maintain any sensitive financial or personal information, should use this ruling as a reason to re-assess their current cybersecurity practices to ensure that they are consistent with and accurately disclosed under all public representations about these practices, and that they have taken adequate steps to protect consumer data from unauthorized access.

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Digital Media, Technology & Privacy Alert >> DAA Announces Mobile Privacy Enforcement to Begin September 1, 2015 - Alert - 05/18/2015

Enforcement of the mobile privacy guidelines is about to begin across all of the sectors of the mobile IBA ecosystem, including app providers, ad networks, brands, agencies, and publishers. Enforcement will be active by both the BBB and DMA, and therefore all companies involved in IBA within the mobile ecosystem should take the time now to review their digital practices to determine whether they need to comply with the DAA’s Self-Regulatory Principles.



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