Interesting foresight that some have. According to their own blog, The 5 Point Cafe (a self-described dive bar) in Seattle, WA has already begun banning google glasses: http://the5pointcafe.com/google-glasses-banned/ .
This presents an interesting tension between the right for any private entity to define its own terms, and the expectation of privacy that one should (should not) enjoy in a ‘public’ space. i.e. to what extent is a ‘private’ bar a public space?
By: Andrew Laing
Canada has recently enacted new anti-spam legislation, unimaginatively known as Canada’s Anti-Spam Legislation, or CASL (you have to give our Congress some credit for coming up with CAN-SPAM). The central achievement of the legislation is a tough opt-in regime for most commercial electronic communications: the law imposes a variety of new requirements Canadian businesses will have to meet regarding consent (which cannot be sought through purely electronic means), disclosure of information, and unsubscription procedures.
This news dovetails nicely with our discussion of existing and proposed European and American laws governing electronic communications, and it also intersects with our recent consideration of “commercial speech” as a distinct category of expression. Some opponents of CASL argue (as in the Financial Post article linked below) that the law makes it needlessly difficult for businesses to reach out to and inform consumers and that overzealous enforcement might cause the law to reach beyond what we usually think of as “spam” to encompass more innocuous interpersonal e-mails that discuss commercial transactions. This raises a deeper question: to what extent is it desirable (or even permissible, under Canada’s Charter of Rights and Freedoms) to raise high barriers to electronic commercial expression in the name of consumer protection? It’s worth keeping that question in mind as Canada’s CASL debate evolves in the coming years.
Here is a Canadian government website explaining CASL:
Here are links to two opinion pieces expressing opposing viewpoints on CASL:
http://opinion.financialpost.com/2013/02/28/delete-this-anti-spam-law/
Finally, here is an overview of Canada’s approach to freedom of commercial expression (see section B(2)(b)):
http://publications.gc.ca/Collection-R/LoPBdP/CIR/8416-e.htm
By: Stephanie Smith
In 2011 Par Pharmaceutical (“Par”) was charged with violations of FDA regulations governing the off-label promotion of prescription drugs. In its defense, Par contended that its ability to convey “truthful” information to physicians was protected by the First Amendment, and that the FDA’s efforts to curb promotion of off-label use was an unconstitutional impingement of commercial free speech.
The crux of Par’s argument was that such promotion was not unlawful and provides valuable and tailored information to physicians regarding its products. The FDA justified its position by responding “Whatever interests Par may assert are far outweighed by the government’s paramount interests of protecting the public health by ensuring the safety and effectiveness of drugs for their intended uses.”
This week it was reported that Pan has now settled the lawsuit on the basis that it pay a fine of $22.5m. It has also agreed to discontinue its First Amendment case against the FDA.
http://www.pharmalot.com/2013/03/par-settles-off-label-probe-drops-free-speech-suit/
By: Kimberly Chow
Last week, Senator Jay Rockefeller (D-W. Va.) reintroduced his “Do Not Track Online Act.” Under the bill, consumers on the Internet would be able to affirmatively choose not to allow companies to collect information on their online activities. The Federal Trade Commission would provide enforcement.
Rockefeller’s initial bill, introduced in 2011, did not make it out of committee, and last year, the Federal Trade Commission endorsed a self-regulatory alternative in its report, “Protecting Consumer Privacy in an era of Rapid Change.” Currently, the World Wide Web Consortium (W3C) is assessing how consumers would send a Do-Not-Track message and what companies would do when they receive the message. W3C’s Tracking Protection Working Group has been meeting since September 2011, with an end date in April 2014.
Some commentators who have complained that this self-regulatory approach is too slow are welcoming the possibility of legislation that might speed up the process. But it remains to be seen whether the often-slow or ultimately unproductive legislative process is any more satisfying. While it’s possible that the bill may have greater success than it did two years ago because of increased public awareness of Internet data privacy issues and because its co-sponsor, Connecticut Senator Richard Blumenthal, sits on the Commerce Committee, it may yet turn out that the self-regulatory approach is the only way to get anything done.
http://www.adweek.com/news/technology/rockefeller-reintroduces-do-not-track-act-147610
http://www.w3.org/2011/tracking-protection/charter
By: David Wildman
On February 28, 2013, the Supreme Court of Virginia ruled that an attorney’s blog postings that named clients who were defendants in criminal proceedings, without permission, qualified as protected free speech under the First Amendment. Key to the court’s decision was the fact that the defendants’ names were a matter of public record, because “[i]t is settled that attorney speech about public information from cases is protected by the First Amendment.” As such, the lawyer was insulated from charges of violating ethics rules meant to protect client privacy.
At issue was Virginia’s Rule 1.6(a), which bars an attorney from revealing “information gained in the professional relationship … the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation.” The Virginia State Bar interpreted the rule to cover public information as well as information protected by attorney-client privilege. The court, however, agreed with attorney Horace Hunter that such an interpretation would violate the First Amendment, stating “[t]o the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections.”
Moreover, public dissemination, the court noted, trumps considerations of “whether the practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression and whether the limitation of First Amendment freedoms is no greater than is necessary or essential to the protection of the particular governmental interest involved” (internal quotes and citations omitted). The court also refrained from confining its holding to non-commercial attorney speech, holding that Rule 1.6(a) could not bar Hunter from disclosing client names (when a matter of public record) even though it found the blog posts themselves to be commercial speech.
The opinion in full:
http://www.courts.state.va.us/opinions/opnscvwp/1121472.pdf
By David Schiff
Most states require permits for concealed weapons, but public access to permit records is becomingly increasingly rare. Last December, in the wake of the school shooting in Newtown Connecticut, a White Plains, New York newspaper, the Journal News, published an interactive, online map with the locations of handgun permit holders in its readership area. Journal News created the map by using Freedom of Information Act requests to obtain concealed weapon permit information from a state database. The map became the focus of both local and national controversy. A primary concern was that the map infringed on the privacy of gun owners and placed them at heightened risk of burglary.
When New York State passed a gun reform law in January, it included an opt-out provision for gun permit holders to have their names and addresses removed from the state’s publicly accessible records (a subsequent court ruling has required that addresses of permit holders be automatically withheld from the public). And after New York’s law passed, Journal News took its map down.
Although Journal News’s gun map lasted less than a month, it is expected to have a lasting effect on the public availability of gun permit records maintained in state databases. According to a recent report by Stateline, the online news service of the Pew Charitable Trusts, Maine, Virginia, Arkansas and Mississippi have all followed New York in closing off public access to gun permit records. A majority of states have enacted similar laws in past years, and at present, only seven states (California, Iowa, Montana, North Carolina, Ohio, Tennessee and West Virginia). Of those seven, two allow only restricted access and at least one more is contemplating legislation to close its gun permit records to the public entirely.
Stateline Report on gun records reform: http://www.pewstates.org/projects/stateline/headlines/lawmakers-move-swiftly-to-block-release-of-gun-permit-records-85899457096
Journal News article introducing Gun Map (map itself has been taken down): http://www.lohud.com/interactive/article/20121223/NEWS01/121221011/Map-Where-gun-permits-your-neighborhood-?nclick_check=1
Washington Post article on Journal News removing gun map:
http://www.washingtonpost.com/blogs/erik-wemple/wp/2013/01/18/journal-news-takes-down-gun-maps/
New York Magazine Daily Intelligencer blog post on court decision that further restricted access to gun records:
http://nymag.com/daily/intelligencer/2013/02/court-makes-gun-map-impossible-to-recreate.html
By: Kolby Loft
Last October, the United States Court of Appeals for the Ninth Circuit held that yellow pages phone books, taken as a whole, constitute noncommercial speech. The court found that although the phone books display many commercial advertisements, they also provide phone listings and community information and thus go “beyond the threshold classification of commercial speech.”
The defendant in the case, the City of Seattle, had asserted the right of privacy as one justification for an ordinance that established the City’s own opt-out registry and required publishers to display a message informing recipients of the registry on their websites and on the covers of the phone books themselves. Additionally, it required publishers to pay a licensing fee and fourteen cents for each phone book distributed. After finding that the yellow pages deserved full First Amendment protection, the Ninth Circuit applied strict scrutiny review and invalidated the ordinance.
The parties recently reached a settlement that authorizes the yellow pages industry, and not the government, to maintain the opt-out program. The settlement comports with the Ninth Circuit’s opinion, which noted that the an opt-out program administered by the yellow pages industry would be a less restrictive means to further the City’s interest in waste reduction, resident privacy, and cost recovery.
The settlement strikes a balance by permitting the distribution of yellow pages, giving individuals the opportunity to opt-out (which takes about three minutes), and allowing the yellow pages industry to maintain the opt-out system.
Opponents of the opt-out system claim that most people are unaware that they can opt-out and may receive the phone books either way. However, studies suggest where opt-in is the rule only 2% of individuals will do so. Meanwhile, it appears that the yellow pages have, for now, managed to preserve at least some viability for as many as two out of three consumers in urban households. Time is probably not on the side of printed phone books, but there are sound arguments in favor of the opt-out system, especially where visibility of the opt-out program is strong and individuals are provided with a simple and reliable avenue to do so.
By: Alicia Reyes-Hernandez
The “Do Not Track” proposition has been part of the consumer’s information privacy protection discussion for several years. Although it has proven to be a very polarizing topic among privacy advocates and industry representatives, particularly from the advertising industry, there is a consensus among them and the government that it is one viable and desirable mechanism to heighten the protection of consumer’s privacy online.
In that line, on February 2012, the Obama Administration officially endorsed the adoption of the “Do Not Track” system as part of their Consumer Privacy Bill of Rights proposal. Following the publication of the mentioned privacy framework, government officials, digital advertisers, browser makers and privacy advocates embarked on a round of conversations with the purpose of reaching a consensus on how to delimit and implement the “Do Not Track” system. One year later, however, no consensus has been reached. Among the issues keeping the negotiations on a deadlock is how to determine the consumer’s intent over online tracking, particularly whether the “Do Not Track” mechanism should be an opt-in or an opt-out feature. Over that matter, the advertising industry has opposed to the opt-out approach because of the negative impact it will have on their business. One of their main arguments is that big companies like Google and Yahoo will not be affected by the opt-out approach since they will still be able to track the behavior of the users in their respective web sites. Given the immense amount of users that they receive every day, they assert that the impact in terms of the collection of consumer behavior information is minimal, thus putting the advertising companies in a competitive disadvantage.
http://money.cnn.com/2012/11/30/technology/do-not-track/index.html
Considering the aforesaid, a general agreement among the players in the private sector seems implausible, at least in the near future. In the mean time, Congress has decided to step into the discussion once again. On February 28, 2013, Sen. Jay Rockefeller introduced the “Do-Not-Track Online Act of 2013” for consideration by Congress. The proposed bill implements an opt-out approach to the “Do Not Track” mechanism by requiring online companies, web browsers and app makers to provide the consumers with the option to opt out of their online behavior tracking practice. The bill, if enacted as drafted, will also give the Federal Trade Commission (FTC) authority to enforce the Act and to formulate the appropriate mechanisms that will allow consumers to notify if they want to be tracked online or not.
http://news.cnet.com/8301-1023_3-57571958-93/do-not-track-privacy-bill-reintroduced-in-senate/
It is too early in the process to know with certainty what will happen with the “Do-Not-Track Online Act of 2013”. From the outset, however, the probability of this bill becoming law looks very grim. It is expected that advertising and online companies will vehemently oppose to this bill. This opposition, as well as the apparent lack of public clamor for a “Do Not Track” system, seems at this point as insurmountable obstacles in the path of this bill.
http://tech.fortune.cnn.com/2013/03/04/why-do-not-track-faces-an-uphill-road/?iid=SF_F_River
By Ana Maria Calero
After the storm of lobbying efforts and in the middle of the fiercest criticism from public interest organizations, the European Commission endorsed the ITRE opinion on the proposal for reform of the data protection regulation. The main purpose of the reform is to provide certainty and uniformity required for the industry; however several doubts about the independency of the European Commission have been raised.
On February 20, 2013, the European Commission voted and adopted an opinion by the European Parliament’s Industry, Research and Energy Committee (ITRE) on the proposals to reform the data protection rules which date back to 1995 in order to modernize and update its principles to deal with the new challenges of the digital age. The Civil Liberties, Justice and Home Affairs Committee (LIBE) will now consolidate the proposals and vote on its own report by the end of April. Vice-President Viviane Reding, the EU’s Justice Commissioner said on Wednesday “today’s vote by the European Parliament’s Industry Committee is an important signal that industry needs uniform and clear data protection rules to take advantage of our Digital Single Market.”
The main innovations of the reform are the introduction of (i) directly applicable regulation on the processing of personal data; (ii) a “one-stop shop” for companies that operate in several EU countries by establishing that they will only have to deal with the data protection authorities of the EU country where they have their main place of business; (iii) a “consistency mechanism” to ensure that the Commission serves as support when regulators cannot agree on a common line’ and (iv) new exceptions for small and medium-sized enterprises. According to the Commission’s Memo the importance of this step towards new privacy regulations lies on the need to deal with the transfer of data to third countries in light of cloud computing. Furthermore, the Commission stresses a declining confidence in online services and tools, negatively affects the “growth of the digital economy and Europe’s digital single market.”
The ITRE report received numerous criticisms by civil liberties groups and consumer organizations accusing members of the Parliament (MEPs) of caving in to pressures from big businesses like Amazon, eBay as well as from the American Chamber of Commerce. According to some of these critiques, MEPs have voted to reduce the control over the use and narrow the definition of personal data, weakened the meaning of consent and personal information and allowed companies to use data for purposes unrelated to the original collection.
In effect, the new regulations on digital privacy were subject of lobby efforts by various U.S. corporate entities. It is important to note that the first proposal on data protection was extremely strict, especially in the field of the right to be forgotten. Yet, after more than one year of lobby campaigns, the EU document suffered severe changes. Seán Kelly, the parliamentarian in charge of drafting the opinion, denied any such accusations and stated that no one had influenced him although his “door was open” and that the proposals were “by and large, well-balanced”. However, using openly-available information the site LobbyPlag showed that in many cases the European Representatives introduced word-for-word the documents prepared by lobbyists, into the amendments proposed for the Data Protection Regulation.
http://europa.eu/rapid/press-release_MEMO-13-124_en.htm
http://www.computerworlduk.com/news/it-business/3427560/eu-makes–900-changes-to-data-privacy-law/
http://www.techweekeurope.co.uk/news/bt-lobbyists-eu-privacy-legislation-108195
http://www.lobbyplag.eu/#/compare/overview
By Sharmeen Mazumder
In a case presented to the European Court of Justice, Spanish officials argued that Google should delete information from search engine results where an individual’s privacy is breached. Google argues that it should not be required to remove lawful content which it did not create from its search index. The case issued from a Spanish man’s complaint that Google search results of his name resulted in a newspaper announcement made several years prior. The announcement stated that property owned by the individual was up for auction due to his non-payment of social security contributions.
One major issue presented by this case is whether Google can be considered a data “controller,” or is merely a host. Another major issue is whether a Google, a search engine rune by a company based in California, can be subject to EU privacy law. The ECJ will address both of these questions when it rules on the matter by the end of the year. The outcome of the hearing would be relevant in all EU countries. Further, this case could determine the scope of new draft provisions of the EU law, which are intended to strengthen individual privacy. Some of those proposed rules would give individuals the right to have personal data deleted from the web.
http://www.reuters.com/article/2013/02/26/us-eu-google-dataprotection-idUSBRE91P0A320130226