Internet Legal Trends to Watch. Part 1: Online Privacy & Do Not Track

Privacy is the new buzz word in talks about the internet and social media. Consumers are becoming increasingly concerned with behavioral and targeted advertising, which is the technique of tracking your online search and browsing activity to determine which products might interest you.

Websites may have more information about you than you realize. They gather information through your online postings, through tracking technology, and through sharing information with business partners. In this radio interview with host Scott West on Daybreak USA, I explain how websites know more about us than we may realize and some of the consequences of having too much of our personal information available through the internet.

Isn’t It Illegal for Websites to Track and Share Information about Me Without Telling Me?

No, not really. There is currently no federal law that requires a website to tell you what information it collects from you, what it does with that information – or even if it collects information at all. The important exception is for sites that are targeted to children. They must comply with the Children’s Online Privacy Protection Act (COPPA). Some states are becoming more aggressive in demanding privacy policies and procedures of websites. For example, the California Online Privacy Protection Act of 2003 requires posting of a privacy policy by any commercial website that collects personally identifiable information from consumers residing in California.

What’s On the Horizon for Privacy Laws?

Congress and regulators are looking closely at online privacy so this may change in the future.

FTC Proposal. The Federal Trade Commission released a report in December and is currently soliciting comments on a new privacy framework that among other things would (i) allow consumers to choose a “Do Not Track” mechanism similar in concept to the “Do Not Call” list, and (ii) require online companies to be more transparent in disclosing what information they collect and how they use it. My DC Bar colleague, Andy Mirsky, discusses the major principles of the FTC’s proposal in a podcast interview with Karen Neuman.

Congressional Action. Rep. Edward Markey (D-Mass.) and other members of Congress have indicated an intention to introduce “Do Not Track” for children. Congress has also indicated that it may pass legislation to give the FTC more privacy rule-making and enforcement authority, a likely required step before the FTC could put its proposed privacy framework in place.

Consumer Action. In 2010 there were at least six lawsuits filed in California against websites and companies that use flash cookies, a tracking mechanism that consumers cannot easily delete. Several of these lawsuits have settled with the companies agreeing to cease using the cookie technology. This legal action suggests that consumers will become less tolerant of tracking techniques they deem to be invasive.