Dataveillance Protection: The E.U.-U.S. Privacy Shield

For many years, technology outpaced policy when it came to standards and protections around ownership of and access to personal data. Privacy policies are not set by governments but rather by technology companies that created the digital world as it is experienced today. Many if not all of the dominant players in this space are American technology companies that include Alphabet (i.e. Google), Apple, Amazon, Facebook and Microsoft. These companies have more say about a user’s online life than any individual local, state or national government.

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Legal Issues in Ad Tech: IP Addresses Are Personal Data, Says the EU (well … sort of)

Much has been written in the past 2 weeks about the U.S. Presidential election. Time now for a diversion into the exciting world of data privacy and “personal data”. Because in the highly refined world of privacy and data security law, important news actually happened in the past few weeks. Yes, I speak breathlessly of the European Court of Justice (ECJ) decision on October 19th that IP (internet protocol) addresses are “Personal Data” for purposes of the EU Data Directive. This is bigly news (in the data privacy world, at least). First, what the decision actually said, which leads immediately into a riveting discussion of the distinction between static and dynamic IP addresses. The decision ruled on a case brought by a German politician named Patrick Breyer, who sought an injunction preventing a website and its owner – here, publicly available websites operated by the German government – from collecting and storing his IP address when he lawfully accessed the sites. Breyer...

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Federal Judge Tosses Stingray Evidence

In a first, a federal judge ruled that evidence found through the use of a stingray device is inadmissible. Reuters reports on the case, United States v. Raymond Lambis, which involved a man targeted in a US Drug Enforcement Administration (DEA) investigation. The DEA used a stingray, a surveillance tool used to reveal a phone’s location, to identify Raymond Lambis’ apartment as the most likely location of a cell phone identified during a drug trafficking probe. Upon searching the apartment, the DEA discovered a kilogram of cocaine. According to ArsTechnica, the DEA sought a warrant seeking location information and cell-site data for a particular 646 area code phone number. The warrant was based on communications obtained from a wiretap order that suggested illegal drug activity. With the information provided by the cell-site location, the DEA was able to determine the general vicinity of the targeted cell phone, which pointed to the intersection of Broadway and 177th streets in...

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Legal Issues in Ad Tech: Who Owns Marketing Performance Data?

Does a marketer own data related to performance of its own marketing campaigns? It might surprise marketers to know that data ownership isn’t automatically so. Or more broadly, who does own that data? A data rights clause in contracts with DSPs or agencies might state something like this: “Client owns and retains all right, title and interest (including without limitation all intellectual property rights) in and to Client Data”, … where “Client Data” is defined as “Client’s data files”. Or this: “As between the Parties, Advertiser retains and shall have sole and exclusive ownership and Intellectual Property Rights in the … Performance Data”, … where “Performance Data” means “campaign data related to the delivery and tracking of Advertiser’s digital advertising”. Both clauses are vague, although the second is broader and more favorable to the marketer. In neither case are “data files” or “campaign data” defined with any particularity, and neither case includes any delivery...

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Legal Issues in Ad Tech: Anonymized and De-Identified Data

Recently, in reviewing a contract with a demand-side platform (DSP), this week, I came across this typical language in a “Data Ownership” section: “All Performance Data shall be considered Confidential Information of Advertiser, provided that [VENDOR] may use such Performance Data … to create anonymized aggregated data, industry reports, and/or statistics (“Aggregated Data”) for its own commercial purposes, provided that Aggregated Data will not contain any information that identifies the Advertiser or any of its customers and does not contain the Confidential Information of the Advertiser or any intellectual property of the Advertiser or its customers.” (emphasis added).… Read more

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Protecting Children’s Privacy in the Age of Siri, Echo, Google and Cortana

  “OK Google”, “Hey Cortana”, “Siri…”, “Alexa,…” These statements are more and more common as artificial intelligence (AI) becomes mainstream. They serve as the default statements that kick off the myriad of services offered by Google, Microsoft, Apple and Amazon respectively, and are at the heart of the explosion of voice-activated search and services now available through computers, phones, watches, and stand-alone devices.… Read more

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Can Social Media Use Save a Trademark?

Maintaining a social media profile has become standard practice for most businesses advertising their services. Savvy trademark owners may also know that they must “use” their mark in order to establish trademark rights – meaning that the mark must be actually used in connection with providing a good or service. But what type of use is sufficient? Is simply using a mark on a Facebook or Twitter profile enough to show “use” of the mark for trademark purposes? A Trademark Trial and Appeal Board (TTAB) decision says no, but offers useful guidance to trademark owners on using “analogous” trademark use to establish trademark rights. The decision is The PNC Financial Services Group, Inc. v. Keith Alexander Ashe dba Spendology and Spendology LLC. Spendology attempted to register the mark SPENDOLOGY for web-based personal finance tools. PNC Financial Services Group (PNC), which used the same mark for an “online money management tool,” opposed Spendology’s application, claiming that PNC...

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Deceptive Software: Breaking Down VW’s Emissions Cheating Code Scandal

Introduction After a university study uncovered code designed to cheat emissions testing standards, Volkswagen Inc. (VW) has been on the defensive, admitting wrongdoing and bracing for the onslaught of regulatory fines, class actions suits, and major repairs and recalls. The code at the heart of the controversy places the car in one of two operating modes. When the car appears to be driving under conditions simulating an emissions test, the “cheat code” is enabled, delivering proficient emissions results and better gas mileage. When driving conditions denote real-world driving, cheat mode is disabled, delivering increased power and torque, but decreasing gas mileage and outputting a level of emissions 40 times greater than the legal limit as regulated by the Environmental Protection Agency (EPA). Discovering the Cheat Code Researchers at West Virginia University uncovered the higher emissions during a study funded by the International Council on Clean Transportation, a...

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Budweiser Protects Its Throne From the Queen of Beer

Anheuser-Busch’s Budweiser brands itself as the king of beer and the company’s recent trademark defense shows it’s not willing to share the throne. A California craft beer company named She Beverage Company recently filed a trademark application with the U.S. Patent and Trademark Office (PTO) for THE QUEEN OF BEER for “beer,” and Anheuser-Busch quickly moved to oppose it. Anheuser-Busch argued in its opposition that She Beverage Co.’s trademark would cause consumer confusion with several of its KING OF BEERS word and design marks, the oldest of which was registered in 1968 for “beer.” Anheuser-Busch also argued that THE QUEEN OF BEER would dilute the distinctive nature of Budweiser’s famous trademarks. Famous marks are afforded heightened protection from similar marks because of the strong connection in the mind of the public between the source of the product and the mark. And there is little doubt that Anheuser-Busch’s marks, including Budweiser, qualify as famous...

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Delayed Results of Google’s “Mobilegeddon” Show Small Sites Suffer on Mobile

On April 21st online behemoth Google altered its search engine algorithm to favor websites it considered mobile-friendly. This change, dubbed “Mobilegeddon” by web developers and search engine optimization (SEO) specialists, sought to reward sites that used responsive design and other mobile-friendly practices to ensure sites display well on smartphones and other mobile devices.… Read more

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