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Legal & Policy

December 7, 2009

FTC Commissioner Harbour: "We have entered a digital arms race, and the current outlook is troubling."

Federal Trade Commissioner Pamela Jones Harbour has always been a thorn in the side of the online ad industry. Harbour, whose term was supposed to expire this September, was the lone dissenter in the FTC's approval of Google's acquisition of DoubleClick, and has since recommended privacy legislation, and lamented Google's recent purchase of AdMob.

Today, speaking at the FTC's privacy roundtable in Washington, D.C., she stressed the need for more decisive government action on consumer data privacy. I obtained the text of her speech from the FTC. Here are a few excerpts ClickZ readers will be interested in (links are mine):

"I believe action has not been a high enough priority to date. I certainly do not intend to criticize Representative Boucher's efforts to craft legislative guidance on behavioral advertising. But as I have previously stated, the United States needs comprehensive privacy legislation. If we continue the piecemeal approach to privacy in this country, we merely push aside the underlying issues.

"...Industry attempts to provide notice and choice to consumers have been insufficient thus far. I hope we would all agree that disclosures about information collection, use, and control are not meaningful if they are buried deep within opaque privacy policies. Even if we can decipher the cryptic disclosures, they provide consumers with no meaningful access or choice, which renders those concepts largely illusory. We have strayed far from the Fair Information Practices that should serve as a baseline for any comprehensive privacy legislation.

"...Even where consumers have the ability to opt-out, the effects are limited. If consumer data are unavailable from one source, often they can be obtained from another. Flash cookies and other technology largely circumvent cookie controls. We may soon long for the day when all we worried about were cookies. For every company crafting a response that addresses notice, choice, or transparency, there are several more firms trying to parse and evade the intent of Commission guidance. We have entered a digital arms race, and the current outlook is troubling.

"...I know the Commission will continue to be the thought leader on privacy. I will certainly do my part to push the Commission, as I have done for six years now, by challenging mainstream opinions and asking tough questions."

In his opening remarks today, however, Chairman Jon Leibowitz was far less forceful, although he admitted the agency's notice and choice approach hasn't gone as well as hoped:

"People have asked me what we expect to get from this roundtable, and where we're headed. I can honestly say: we don't know. Our minds are open. We do feel that the approaches we've tried so far - both the notice and choice regime, and later the harm-based approach - haven't worked quite as well as we would like. But it could be that this issue is a lot like Churchill's view of democracy: 'it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time.' "

Posted by Kate Kaye at 4:35 PM | Permalink | Comments (0)

October 16, 2009

FTC Responds to IAB Letter on Blogger Guidelines

Yesterday the Interactive Advertising Bureau took a jab at the Federal Trade Commission's revised guidelines on online endorsements. Put simply, the guidelines call for online reviewers to disclose payment or affiliation with marketing campaigns or advertisers.

The way the IAB sees it, the FTC is unfairly favoring traditional media over digital media. In a letter sent to the FTC chairman, IAB prez Randy Rothenberg contended the FTC's call for disclosure of "material connections" between advertisers and endorsers in social media platforms will "shackle online media while exempting our offline cousins and competitors from equivalent constraint."

"I don't think that there is any favoritism based on the type of media," Rich Cleland, assistant director of the FTC's division of advertising practices told ClickZ News this morning. "The core here is do consumers understand the relationship that exists between the speaker and the seller." "Offline, if those lines are blurred, then there's a problem," he continued. "These are not new issues."

As iterated throughout his lengthy letter, Rothenberg and others fear that the FTC will now be on the hunt for bloggers reviewing and endorsing products, which he argues will squelch social media.

"In terms of bloggers and other endorsers...I don't think that there is any reason for concern," said Cleland, stressing, "We have explained on a number of occasions that we do not have civil penalty authority." In other words, he told me, the FTC is not planning an enforcement sweep against bloggers. Also, he confirmed, the FTC has no authority to fine anybody (despite countless erroneous reports to the contrary).

The IAB also suggested that the FTC guidelines are "perverse" and "constitutionally dubious," stating they imply "individuals writing in social media bear greater liability than do those writing for offline, one-way media."

"It's not clear what exactly the IAB thinks the constitutional issue is here," Cleland said. "The guidelines are in fact just guidelines and to the extent that they focus on [misleading] commercial activity and practices that are essentially promoting products in exchange for payments or free merchandise...we don't think that there's a constitutional issue."

As for the public hearing the IAB wants the FTC to hold to hash out the concerns, Cleland said, "We haven't made any determination on that.... We've already taken comments on this issue." Still, he added, "We don't want to preclude that we might do something in addition to [the comment period]."

Posted by Kate Kaye at 12:39 PM | Permalink | Comments (1)

June 10, 2009

What's Driving Government's Gripes with Google?

If it seems like the government has a beef with Google - make that multiple beefs - it's a logical conclusion. The Federal Trade Commission and the Department of Justice have either formally or informally investigated a variety of its business practices and projects. The Wall Street Journal today has a good round up of the government intervention, particularly the DOJ's request that Google and its book publishing partners provide "information about a deal both struck last year to allow the search giant to make millions of books available online."

The article refers to "probes" into "4 Fronts:" the book search deals, the hiring practices of Google and other tech firms, overlap on the boards of Google and Apple, and - of most importance to us here at ClickZ - consumer protection issues related to online advertising (think DOJ's inspection and subsequent squelching of the Google/Yahoo search deal and FTC's ongoing work on behavioral ad targeting).

Ever since the news reports surfaced that the DOJ is also inspecting the hiring practices of Google and others (Yahoo and Apple have been named), I've been thinking a lot about this investigation pile up, too.

A few questions leap to mind:
1. Is this simply the result a more regulation-prone Democratic administration at work?
2. Is Google being picked on or singled out?
3. How much do lobbying efforts influence these sorts of inspections?
4. Could these investigations be fishing expeditions?

I don't know the answer to any of these, of course. But I did have a talk about some of these subjects yesterday with Eric Goldman, assistant professor at Santa Clara University School of Law and prolific Internet law blogger.

Specifically, we discussed the reported DOJ inspection of tech firms and their hiring practices. The concern, Goldman and others believe, is that tech firms could be in effect suppressing their labor market. If - as has been standard practice for years - they include "non-solicitation" clauses in their agreements with employees or business partners, they may have placed restrictions on the ability of other businesses to hire their employees, or of employees to freely move to a competitor's firm.

Such agreements among companies ("Sure, we'll hire you on a consulting basis, but you have to agree not to poach any of our staff.") could amount to a cartel-like situation in the eyes of the law. Apparently, said Goldman, trade associations deal with this sort of thing all the time. If, for instance, members of a trade group set standards for doing business, could they freeze out other methods or technologies in the process? That would be an antitrust issue.

The thing is, at least at the higher levels, online ad sector firms seem to be hiring left-and-right, and often grabbing execs from competitors. Very recently, for instance, ad execs have moved from Google to AOL and Facebook. Indeed, Goldman told me he was "surprised that this issue has even been surfaced because there is [indication] that this is a pretty healthy labor market."

He also indicated that at least some of the investigations involving Google are mere tentacles of a larger animal. "Could the DOJ be sniffing around tech cos. and their hiring practices to see what they can dig up?" I asked him. They may be on a "fishing expedition," responded Goldman. Either way, he told me, it's not difficult for the DOJ to obtain the information it seeks. "They can do a lot without formal activity," he said.

Posted by Kate Kaye at 5:46 PM | Permalink | Comments (0)

June 2, 2009

Could Court Decision on Method Patents Matter to Online Ad Industry?

The online ad industry has grown and thrived, in part, some would argue, with the help of business method patents. All sorts of ad tech firms have filed for or received patents on methods for doing all sorts of media and ad-related stuff. But business method patents are controversial and sometimes disputed.

Now, the Supreme Court is considering expansion of patent protections for business methods (think Amazon's one-click purchase system, or ad serving and targeting technologies). According to a Wall Street Journal story, "The high court said it would hear an appeal by two inventors who were seeking to patent a method for hedging weather-based risk in commodities trading. A federal appellate court ruled last year that the method was too abstract to be patented."

The Court was meant to hear the appeal today.

Posted by Kate Kaye at 4:40 PM | Permalink | Comments (0)

May 26, 2009

IAB to Hold Presser in Face of Impending Gov't Intervention

There's no question the online ad industry is getting more serious about government intervention. With Congress pretty much saying they'll draft a bill this year, and the Federal Trade Commission giving countless "this is your last chance" warnings (the last one took place during a panel I moderated in D.C. a couple weeks ago), organizations like the Network Advertising Initiative and the Interactive Advertising Bureau are on the defensive.

The IAB just sent out an invite to media outlets that indicates its serious attention to the matter. On June 10 in Washington, D.C., the organization "will announce the results of the first-ever comprehensive analysis of the economic and social impact of the ad-supported Internet," according to the invite. "Produced by Harvard Business School Professors John Deighton and John Quelch, the IAB-commissioned study is an impartial and comprehensive examination of the overall impact of the Internet on the U.S. economy as well as its underlying components.

Well, we know the Internet has had a huge, mostly positive effect on the U.S. economy, and arguably society. And, at this point, the bulk of the revenue for Internet content comes from online retail and - yes - advertising. That qualifier, "the ad-supported Internet," is important here. If we can assume the "ad-supported" Internet has been great for the economy and society, then the IAB will surely conclude that the industry that enables that ad support must not be squelched by strict regulations or legislation. Or else, they'll argue, the positive impact of the Internet could in turn be damaged.

The event will be held at 12:30 on June 10 at the National Press Club.

Posted by Kate Kaye at 3:30 PM | Permalink | Comments (0)

September 29, 2008

Obama or McCain? Who's Better for the IAB?

As part of a broader conversation last week, I asked Internet Advertising Bureau VP Public Policy Mike Zaneis what he thought about how the IAB would fare under a Barack Obama administration versus a John McCain administration.

Q: Do you have any sense of what administration might be better when it comes to the IAB's goals?

A: I don't think we really know. Senator McCain obviously has a long history chairing the Senate Commerce Committee, and bills such as CAN-SPAM, and I think Do-Not-Call. I'm not sure what that teaches you. It's regulation of technology and advertising, but they are also bills that industry has been able to largely support and to certainly operate robustly under. I see a balance there. You see some interest in technology. I think he's always been really supportive of staff that really understand the issues, and that's really helped. Under an administration would those same staff be the folks making the calls? I don't know. We'll see.

I don't think it's a high, high priority for Senator McCain; I don't think it's a high, high priority for Senator Obama. And neither one of them has come out with real defined, real detailed specifics around privacy, technology, or ecommerce.

With Senator Obama there would be some education there; he doesn't have quite the long history. But one thing he's shown is he can bring in real substantive experts to educate himself around issues. I don't think he's got the staff to pull from like McCain does, but he's shown himself very adept and has such widespread support he could find a lot of smart people to have on the policy side.

The short answer is we don't know and I don't think one would be more favorable than the other right now. I think we'd be able to work with both of them to be honest with you. Again it would be education: maybe a little more education around Senator Obama, because there's not quite the history there, but I think he'd be open to it.

Posted by Kate Kaye at 3:20 PM | Permalink | Comments (0)

September 22, 2008

Correction: IAB Prefers Cuddly Pups

Well, I was wrong. Staffers at the Interactive Advertising Bureau apparently are dog people, according to IAB VP Public Policy Mike Zaneis. Not only did he correct my original claim that the IAB likes fluffy kitties, he called me out in front of an entire room's full of people at last week's OMMA show! (He spoke on a panel about the IAB's approach to self-regulation and enforcement of online advertising guidelines.)

It's a dog-eat-dog world, folks.

Posted by Kate Kaye at 12:44 PM | Permalink | Comments (0)

September 17, 2008

IAB Says "No" to Spyware, also Likes Fluffy Kitties

The Interactive Advertising Bureau yesterday put out a press release commending Congress for passing the Identity Theft Enforcement and Restitution Act, which provides for enforcement for nabbing and prosecuting cyber criminals and spyware purveyors.

In other news, The Securities Industry and Financial Markets Association has praised the removal of lead from interior paint.

Am I missing something here? Don't get me wrong, there is a connection between the industry and the scourge of spyware. But it's not exactly the issue of the moment. Are there not some really important things going on in the online ad industry right now that might warrant some attention?

It seems like every week a new advocacy group, government body or regulator expresses concern about behavioral targeting and ISP-based targeting firms like NebuAd and Phorm.

The IAB has barely made a peep about this stuff. Meanwhile, IAB CEO Randall Rothenberg has appeared before Congressional Members urging them not to regulate the industry. As concerns about ISP-based ad targeting and behavioral targeting mount, the IAB needs to get serious about self-regulation before the government steps in to do it for them. And, as anyone who's ever heard the types of questions asked during an online ad related congressional hearing knows, our friends in the House and Senate might not be the best suited for that task.

Posted by Kate Kaye at 12:56 PM | Permalink | Comments (3)

August 20, 2008

FTC Commish Says $77m Enough to Target Kids Online

The Wall Street Journal today has an interview with Federal Trade Commissioner Jon Leibowitz regarding the agency's investigation into marketing to kids. One question deals with digital advertising in particular, and exemplifies how marketers are integrating on multiple platforms to reach kids.

Here's what Leibowitz had to say:

One of the surprises in the [recent FTC] report was the prevalence of integrated advertising campaigns. They're sophisticated, they're multi-platform, they're cross-promotional. It's very different than what you see on, say, "Mad Men," and it's a whole virtual ecosystem, so you can see an ad on TV, you buy the product, you go on the Internet, you enter a code, you collect points, you win a prize, the prize is a T-shirt, the T-shirt advertises the product. So we are seeing a fair amount of cross-promotional marketing. We only found $77 million in Internet advertising, but our guess it that it's very efficient advertising, because it's targeted.

Posted by Kate Kaye at 11:58 AM | Permalink | Comments (0)

August 17, 2008

Facebook, Others Sued Over Ad Targeting Program

Facebook and at least seven advertisers are being sued for an unpopular ad targeting program. Advertisers named in the federal lawsuit include Blockbuster, Fandango, and Zappos.

The ad targeting initiative, known as Beacon, was rolled out in November 2007, but overhauled a month later after privacy and consumer advocates cried foul. Facebook subsequently gave people more control over what online activities are visible to friends.

A copy of the lawsuit, published by wired.com, can be found here.

Posted by Anna Maria Virzi at 1:05 AM | Permalink | Comments (0)

August 11, 2008

Google Responds to House Inquiry

Google is "deeply committed" to privacy and security of its users, but not to deep-packet inspection.

Read its responses to a recent House Subcommittee inquiry and you'll soon realize the company didn't exactly find them all pertinent to its business. While the questions asked by the House Energy and Commerce Telecommunications and the Internet Subcommittee deal with online ad practices and consumer data privacy, the main focus is "deep-packet inspection." That's the technology employed by firms including like NebuAd to target ads to customers of particular ISPs. Legislators have grown increasingly skeptical of the practice, leading trials to be stalled or halted all together.

Many answers to questions featured in Google's letter to Subcommittee Members went like this: "We understand this question to be focused primarily on the implementation of deep-packet inspection advertising practices by a small number of U.S. ISPs in partnership with a privately-held online advertising company. Google does not deliver advertising based on deep-packet inspection."

The "privately-held online advertising company" is NebuAd. In the UK, Phorm has forged relationships with ISPs like British Telecom (which, by the way, has stalled its trial of the ad targeting technology for longer than originally anticipated).

The bulk of the firms that received the inquiry letter are ISPs. At this point, though, it's unclear whether they've all responded to the questions by the deadline, this past Friday. Yahoo also responded publicly.

One question regarding use of data gathered through one platform or service to target ads to another did result in an interesting response from Google:

Google does not correlate data regarding use across our products to offer advertising. For example, when we serve a contextual ad to a user of Gmail, our email service, that ad is based only on the text of the page that a user is viewing, and it is not based on any information from any other product such as Google Calendar or Google Search. If we were to correlate data regarding use across our products to offer advertising, we know that we would have to do so in a way that protects the privacy and security of our users, an endeavor to which we are deeply committed.

Posted by Kate Kaye at 11:58 AM | Permalink | Comments (1)

August 8, 2008

Yahoo Responds to House Inquiry, Allows Behavioral Opt-Out

In response to last week's request by the House Energy and Commerce Telecommunications and the Internet Subcommittee, Yahoo has announced opt-out capability for behavioral targeting. In a letter to Subcommittee Members, the company said it "will offer consumers even greater choice by allowing consumers to decline customized advertising(8) on Yahoo.com. This is in addition to our existing opt-out when Yahoo! serves customized advertising on third party networks."

That (8) leads the reader to a footnote explaining that Yahoo's internal term for behavioral targeting is "customized advertising."

The legislators sent letters to over 30 firms, mostly ISPs, inquiring about their online advertising practices, data privacy policies, etc., a week ago. Today's the deadline for them to respond.

Posted by Kate Kaye at 1:49 PM | Permalink | Comments (0)

Florida AG Spoils Fun for FunMobile

The Florida AG strikes again. This time Sunshine State Attorney General Bill McCollum has darkened the day for MobileFunster, a company that does business as FunMobile and sells mobile content like ringtones and wallpapers.

After penalizing ad networks like Azoogle and telecom AT&T Mobility for their alleged roles in enabling deceptive ads for "free" mobile content and other items, the AG's CyberFraud Task Force has gone after its first mobile content provider.

The Hong Kong-based FunMobile has agreed to cough up $1 million, and like other companies the diligent AG's office has settled with, the firm will "lead mobile content providers in setting new marketing standards that will benefit Florida consumers and cell phone users nationwide," according to the office's press release.

Full settlement in PDF form here.

Posted by Kate Kaye at 12:28 PM | Permalink | Comments (0)

August 5, 2008

Valueclick Joins Gang-up on Tacoda

Valueclick has filed suit against AOL's behavioral targeting firm Tacoda, claiming patent infringement. As Congress and the Federal Trade Commission sharpen their focus on the sector, the continued flow of lawsuits over behavioral ad targeting technologies indicates the potential for success outweighs any government threats.

According to Federal District Court filings, Valueclick filed a patent infringement suit against Tacoda in California District Court on July 15. Not much seems to have occurred yet besides judge reassignments. Valueclick beefed up its behavioral capabilities last month.

Whether Valueclick has a chance with this one is anyone's guess. The company settled a patent infringement case against behavioral targeting firm Revenue Science in February. The docket notes on that case state, "ValueClick and Revenue Science shall each bear their own costs, expenses and fees. IT IS SO ORDERED."

After AOL bought Tacoda, it became subject to a patent suit – almost exactly a year ago -- from a little known firm that seemed to be pushing its way into the behavioral space with little history in it before that. That suit, filed in New York by Modavox, an online broadcasting media production firm-turned-software provider, appears to be ongoing without much movement.

Of course, neither AOL/Tacoda nor Revenue Science would comment. No one is available from Valueclick to speak at this point, either.

Posted by Kate Kaye at 2:13 PM | Permalink | Comments (1)

July 29, 2008

CA Lawmaker Wants Google/Yahoo Deal Investigated

California Assemblyman Joel Anderson wants the state's Attorney General to inspect the Google/Yahoo search ad deal. It's already stalled by the U.S. Department of Justice. According to a CNET report, the San Diego Republican wrote the following to the AG: "I am writing to urge you to direct your office to take quick and decisive action by launching a formal investigation into the proposed business transaction between Google and Yahoo's search-advertising business."

Like other critics, he's worried about search data privacy as the companies combine forces for some advertising. He's also worried about competition, which is the DOJ's main concern.

Yahoo denied the notion that it will merge data with Google.

Posted by Kate Kaye at 5:10 PM | Permalink | Comments (1)

July 25, 2008

Quote of the Day: Eric Goldman on NebuAd and Phorm

"The battles over the legality of Phorm and NebuAd are a smokescreen for the real issue, which is that marketers who have only server-level data don't want to compete against someone who has a better dataset than them. So expect plenty of continued fireworks over Phorm and NebuAd, but don't kid yourself that it's only the privacy advocates beating up on them."

-Eric Goldman, expert on Internet law and professor at Santa Clara University, commenting on the legality of behavioral tracking and ad serving platforms that tie into ISP networks.

Posted by Zachary Rodgers at 10:46 AM | Permalink | Comments (1)

July 18, 2008

FTC Makes Antitrust Education Easy

Ever wonder how the Federal Trade Commission arrives at its decisions regarding whether to approve acquisitions such as Google's earth-shattering DoubleClick buy? No worries: The commish has put together a resource with 25 fact sheets on stuff like antitrust and price discrimination. With some huge Yahoo deal still looming, this could come in handy.

Posted by Kate Kaye at 4:48 PM | Permalink | Comments (0)

July 17, 2008

A Moment of IAB Appreciation

On this, a heat-index alert day, IAB head Randall Rothenberg's blog (or "clog," as he insists on calling it), is a breath of fresh air.

Today's entry, once you get past the "join the IAB" call-to-action, elegantly and articulately enumerates the scary regulatory and legislative threats (both on the state and Federal levels) facing online publishers.

Consumers and legislators don't understand what online advertising is, or how it works. Too many Internet publishers and advertisers, meanwhile, are tuning a blind eye to the implications of their ignorance, namely, bad laws that can carry significant negative economic consequences to those making a living off interactive publishing and advertising.

Rothenberg deserves a shout-out. Under his leadership, the IAB is meeting all sorts of challenges the organization too long ignored. Bringing smaller companies into the fold is just one of these. The much bigger picture is aggressively addressing threats to the industry on the legislative level. It's a far cry from the days when the body stood idly by while other measure, such as CAN-SPAM, wended its way through the FTC and ultimately, Congress.

Take a moment today to read Randall's most recent post. The goings-on in Washington may appear distant today, but the impact on your business is going to matter tomorrow.

Posted by Rebecca Lieb at 12:12 PM | Permalink | Comments (0)

July 15, 2008

Viacom-YouTube Reach Privacy Deal over User Info

Google's YouTube won't be required, after all, to hand over user IDs to Viacom.

The measure is part of an agreement reached yesterday in U.S. District Court in New York City in connection with a Viacom copyright infringement lawsuit against YouTube. In that lawsuit, Viacom claims Google failed to stop the distribution of Viacom content on YouTube.

Earlier this month, a federal judge ordered Google to hand over to Viacom the following information: YouTube user IDs, visitor IDs, and the IP address, which is used to connect computers over the Internet. Under the new agreement, Google will be able to substitute the IDs and IP addresses for "unique values." As a result, the privacy of users should be better protected, while Viacom should still be able to establish what videos were watched.

"We are pleased to report that Viacom, MTV and other litigants have backed off their original demand for all users' viewing histories," the "YouTube Team" wrote on YouTube's blog.

Most visitors posting entries on the YouTube blog applauded the development. "thanks, Youtube. It's good to know that at least one organization is committed to our privacy," wrote arcadianraider.

Others asked when Google would reduce the amount of information it obtains from users. "Great! So when are you going to let us OPT OUT of information collection?" asked thestranger.

Posted by Anna Maria Virzi at 10:34 AM | Permalink | Comments (2)

July 14, 2008

States Join DOJ in Google/Yahoo Probe

Connecticut and Florida are among "about a dozen states" reviewing the recent Google/Yahoo search ad deal, according to a recent Washington Post story.

They're concerned that the partnership is anti-competitive.

"If their agreement is a substantial one in its impact on services or costs, it could have a huge impact on competition. It could be hugely anti-competitive," Connecticut Attorney General Richard Blumenthal told the paper. Florida's AG Office said the state is working with other AG offices in its review.

The Department of Justice has already begun its investigation of the deal

State governments would have a vested interest if companies based in their states could be affected by Google and Yahoo working together on search advertising.

Microsoft is against Yahoo and Google partnering for a number of reasons: It bolsters their share of the search market and strengthens Yahoo in Microsoft's fight for the firm. Although it's not clear that Microsoft is out there lobbying state governments to poke their noses in the Google/Yahoo deal, it wouldn't be surprising if the company has prodded states to look into it.

Posted by Kate Kaye at 12:24 PM | Permalink | Comments (0)

July 9, 2008

No ISPs at Senate Hearing Today Despite Invites

NebuAd is there. Google's there. Microsoft showed up, as did the privacy advocates. The Federal Trade Commission came, too. But the ISPs are nowhere to be found at this morning's Senate Committee on Commerce, Science and Transportation hearing on the Privacy Implications of Online Advertising. Democratic Senator Byron Dorgan of North Dakota isn't happy about it either. In his opening remarks, he lamented, "I had invited Internet Service Providers today, and they had declined the invitation."

Tsk, tsk. The Senator isn't giving up, though. He told attendees he will hold another hearing for ISPs alone because he thinks the committee needs to hear from them, when it comes to recent behavioral targeting trials with firms like NebuAd.

Posted by Kate Kaye at 10:29 AM | Permalink | Comments (0)

July 3, 2008

Google, Microsoft and Yahoo Collaborate for IAB U.K. Search Help Site

The Interactive Advertising Bureau U.K. has launched its dedicated Search Help Centre, offering advice to marketers on best practices, policy and legal regulation regarding search marketing.

Content for the site is supplied by Google, Microsoft and Yahoo, alongside a panel of agencies and advertisers from the IAB U.K.'s Search Council.

The free resource is intended to provide regularly updated information on issues surrounding trademarks, copyright, invalid clicks, click fraud, user privacy, and intellectual property. It will also include help and advice for advertisers on how to go about hiring a search agency.

Intellectual property will form a key focus for the center. An IAB U.K. release issued today read, "Protecting intellectual property is a growing area of concern because it has become extremely valuable, therefore marketers need to understand what campaign property they own and how to protect it.”

Jack Wallington, chair of the IAB Search Council told me, “For advertisers this is important because they may not be aware of the increasing value of [intellectual property] in search marketing and how to handle and protect it. For agencies it will become a larger issue because they need to decide exactly what they are willing to share with each other and their clients – what is and isn’t competitive information for instance.”

He added that the IAB now recommends making intellectual property a key consideration when starting a relationship with an agency.

The Help Centre resource goes live today.

Posted by Jack Marshall at 12:12 PM | Permalink | Comments (0)

June 19, 2008

Did Your Phone Help Elect Bush/Cheney?

With approval ratings for the current administration at all time record lows, Credo Mobile came up with this near-irresistible e-mail subject line.

The body copy and call-to-action are no less compelling:

Sorry to say, but the political action committee at AT&T contributed the maximum amount allowable by law to the Bush/Cheney campaign — twice. So, go ahead, check out your mobile phone company. And then check out the mobile phone alternative you can trust. It's called CREDO Mobile, and it's mobile phone service that stands up for your values, brought to you by Working Assets.

On the other hand, if you're happy with your mobile service just the way it is, accept this photograph as your gift from a real, ahem, Richard.

To get your phone in line with your values, click here.

Just a hunch, but this is going to get Credo onto consumers' radar - fast. Particularly the ones whose major gripe with the telco until now has been its indefensible anti Net neutrality stance.

Posted by Rebecca Lieb at 3:07 PM | Permalink | Comments (2)

June 11, 2008

FTC Wants Civil Penalties in its Anti-Spyware Arsenal

Look out spyware perps. Today Federal Trade Commission Bureau of Consumer Protection Deputy Director Eileen Harrington told members of the Senate's Committee on Commerce, Science, and Transportation that stronger penalties for perpetrators of spyware might be a good idea. “Legislation authorizing the Commission to seek civil penalties in spyware cases could add a potent remedy to those otherwise available to the Commission,” said Harrington, according to an FTC statement.

The FTC's current enforcement involves "consumer redress or making the operators give up their ill-gotten gains." But that may not be enough to deter bad actors. Harrington said the commission supports legislation that would provide the FTC the ability to slap spyware disseminators with civil penalties.

Posted by Kate Kaye at 5:11 PM | Permalink | Comments (0)

June 4, 2008

Mobile Scam Suit against Google Akin to Investigations of Vendors and Carriers

Google is being sued for what seems to be the same thing companies like AzoogleAds (now Epic) and World Avenue were investigated for by Florida's Attorney General's Office. Those ad firms agreed to pay $1 million each for allegedly duping consumers into signing up for supposedly "free" mobile content services and other gifts that actually cost them.

Those firms served the lead-gen driven ads or bought ads on sites like Google promoting the offers. The AG's Office also got AT&T to agree to pay $2.5 million for aiding what they considered free mobile content scams. As a carrier, AT&T billed customers for such "free" services.

There's a chance other carriers, ad firms and even publishers like Google are on the Florida AG's investigation list.

Now, as reported by Tech Marketing law blogger Eric Goldman, a class action suit has been filed against Google for helping these allegedly fraudulent mobile offers to perpetuate. Goldman doesn't like it. He calls it a "misdirected lawsuit," and believes Google shouldn't be sued just for running the ads.

"The plaintiffs in this putative class action lawsuit feel like they got fleeced by providers of these subscription services," writes Goldman. "If they did, I hope they get appropriate redress from the wrongdoing vendors. But instead of suing the allegedly fraudulent vendors, the plaintiffs think Google should cover the losses for the sole reason that Google ran ads for the services….. An analogy might be that dead-trees newspapers should stand behind any losses suffered by readers who transact with newspaper advertisers. Sounds ridiculous? It does to me, whether the publisher is online or off," he continues.

Posted by Kate Kaye at 12:00 PM | Permalink | Comments (2)

May 30, 2008

Musicians Back 'Net Neutrality

If there's one album you don't want to grab off of a P2P server, this would be it.

Rock the Net, the nationwide coalition of musicians and labels that support net neutrality (841 bands, 177 labels and counting), are releasing an album to benefit their very worthy cause on July 29.

Wilco, Bright Eyes, DJ Spooky, They Might Be Giants, Aimee Mann and more have dontated tracks to the compilation, which will be released by indie Thirsty Ear Recordings.

Kind of ironic that musicians, who have seen their industry gutted by the Web, would band together to support this critical cause. It would be nice to see interactive marketers and advertisers, whose bread and butter depend on a freely accessible Internet, make their own brand of noise about the issue.

Posted by Rebecca Lieb at 4:14 PM | Permalink | Comments (0)

May 16, 2008

State Governments Not Letting Up on Online Ad Players

State governments are becoming thorns in the side of the digital ad industry, and Texas is the latest state to wrangle an online ad player. Indeed, Texas is the reason World Ave is Out $800K. The lead gen services firm World Avenue will cough up the cash to the state as part of a deal to settle the case against it. According to the Texas Attorney General's Office, the state took legal action because the firm didn’t disclose that users would need to weed through a chain of sponsor offers (and register for them) before getting through to a promised iPod or other so-called "free" gift.

World Ave. works with clients including Blockbuster, Netflix, credit card companies, and others, offering products in exchange for customer data.

"World Avenue USA has agreed to develop and implement standards and best practices to ensure that proper disclosures are included in the future," according to the AG's press release. The company also has to abide by rules about using the word "free" that are becoming commonplace in such settlements. For instance, "when a purchase is actually required, that disclosure must be in close proximity to the word 'free' so that customers are adequately informed about costs associated with acquiring the 'free' item."

Like Florida's AG Office, which settled with World Ave in January (they agreed to pay $1 million), Texas seems active in investigating online ad companies. Back in November 2007, the Federal Trade Commission held a forum on behavioral targeting that featured a panel with Brad Schuelke, chief, Internet Enforcement Unit Office of the Texas Attorney General. He indicated state governments would be involved in inspecting that sector.

"I think in general right now the states are looking at a couple of things," he said. Yeah, it's vague, but the guy was on a panel at an FTC conference (I believe a representative of NY's AG Office was also present). That's indication in itself.

It's unclear whether Texas is investigating other firms for alleged fraudulent online ad practices. An AG Office spokesperson told me they don't reveal that information. "I will have to tell you that this office does not acknowledge investigations of any kind, but we welcome complaints from consumers at any time, particularly if they believe they are being defrauded or misled, as was the case with the World Avenue USA matter," he wrote in a later e-mail.

We know Florida is going after the big fish – companies that enable payments for alleged fraudulent mobile content offers. In February, AT&T Mobility agreed to pay $2.5 million to the AG's office in addition to refunding customer payments for ringtones and other cellphone content advertised as free.

It's my understanding that Attorney General's Offices often collaborate. When I spoke with Office of Florida Attorney General Bill McCollum in February, he told me state operations do talk from time to time because they're dealing with the same problems.

"There's communication," he continued, "but in reality, they have their own cases and we have our own efforts."

State approaches vary as much as the practices of the online ad industry firms they seek to regulate. Still, it's interesting to note Internet ad firms also work together to stave off unwanted government intervention. For instance, just last month, a once-loose collective of companies including Google, Yahoo, AOL and eBay finally incorporated officially after four years of collaborating to influence state policy.

Posted by Kate Kaye at 11:24 AM | Permalink | Comments (0)

May 13, 2008

FTC Clarifies Single Sender CAN-SPAM Rule

The Federal Trade Commission amended four CAN-SPAM Act provisions. The new rules stipulate that companies don't charge users to opt-out of receiving e-mails. They also alter the definition of the term "person," according to the FTC press release, "to clarify that CAN-SPAM’s obligations are not limited to natural persons."

The term "sender" was also redefined in an effort to clarify who's responsible for enabling opt-outs when multiple parties advertise in a single e-mail. According to the Act's full document:

The final Rule provides that multiple 'senders' of a commercial email, under certain conditions, may identify one among them as the 'sender' who will be deemed the sole 'sender' of the message (the 'designated sender'). Thus, under the final Rule, the designated sender, but not the other marketers using the same email message, must honor opt-out requests made by recipients of the message. Moreover, under the final Rule, the physical address of the designated sender, but not the addresses of the other marketers using the same email message, must appear in the message.

Apparently, the FTC received nearly 60 comments regarding this proposal.

Posted by Kate Kaye at 4:33 PM | Permalink | Comments (0)

May 12, 2008

U.K. Facebook Creatives Branded 'Illegal'

A range of ads promoting credit and loan facilities on Facebook are in fact illegal, according to U.K. debt charity Credit Action.

The charity has said that a number of companies advertising on the social networking site are not providing information on their products that is required to satisfy U.K. advertising laws set out by the Office of Fair Trading (OFT).

An article on the credit action website reads, "If you've been on Facebook recently, you can't miss the adverts for 'payday loans' and credit cards. What you may not have realised is that many of these ads are breaking the law!"

The offending ads fail to state the annual percentage rate of interest (APR) of the loans being advertised. According to Credit Action, this information must be clearly displayed if the ad offers an incentive or interest-free period, makes comparisons with other lenders' products, or provides services tailored for those with poor credit histories.

Malcolm Hurlston, the charity's chief executive, said that some of the companies are U.S.-based lenders who may not be aware of U.K. advertising rules, but that others are from big-name firms who have been active in this country for some time.

"We must be sure that such creative products concur with existing rules and regulations and offer customers the full protection of the law," he told the U.K.'s Guardian newspaper.

Credit Action has written to the OFT complaining about the ads, but says that users should also report them to Facebook.

Offending companies include Payday U.K., Payday Advance U.K. and My Payday Online.

Posted by Jack Marshall at 11:23 AM | Permalink | Comments (0)

April 11, 2008

Net Neutrality: Sign the Petition Before Next Week's Hearings

The FCC is holding a public hearing on Net Neutrality in Palo Alto next week.

In case you haven't gotten the message, this issue has the potential to affect every single person in the United States who uses, or benefits from, the Internet. It's also an issue interactive marketers simply cannot afford to ignore.

Telcos and cable companies including AT&T, Verizon, Comcast, and Time Warner are working to pave the way for "network management" practices that would allow blocking of certain content in favor of those Web sites and services the access providers prefer.

Don't let this happen. Support Net Neutrality. A good place to start might be signing this petition in support of the Markey-Pickering bill, which would mandate the FCC to "guard against unreasonable discriminatory favoritism for, or degradation of, content by network operators based upon its source, ownership, or destination on the Internet."

Thanks.

Posted by Rebecca Lieb at 3:23 PM | Permalink | Comments (1)

April 9, 2008

Georgia Court Lesson: Check Metatags with Lawyers

Marketing tech law blogger extraordinaire Eric Goldman has a thorough post on an 11th Circuit Court decision on the use of trademarks in metatags, as they affect search results. The case involved two medical device firms. One, Axiom, employed trademarked terms of its competitor, North American Medical Corp. in its metatags. The court ruled this is trademark infringement.

According to Goldman, the decision "distinguishes (and denigrates)" the 2nd Circuit's 1-800 Contacts/WhenU ruling because it involves metatags rather than URLs and since Axiom apparently caused its competitors' TMs to show up in its search result copy linking to its site.
The court also said use of another firm's trademarks in metatags causes consumer confusion. It argued people would be misled to think Axiom's products came from the same source as those of the actual owner of the trademarked brands in question, or that there was some relation between the two companies.

Goldman calls the decision "bizarre and frustrating," but notes two lessons to be learned from it. First, he recommends having metatag data reviewed by the lawyers "just like any other ad copy."

He also writes, "if you are going to use keyword metatags, you must ensure that competitive trademarks do not appear in your keyword metatags, period. It's just not worth it. They don't buy you much juice with the search engines anyway, and it will leave you exposed to irrational judicial freakouts about keyword metatags if ever tested in court."

Posted by Kate Kaye at 11:44 AM | Permalink | Comments (0)

March 17, 2008

ValueClick Experiences Long Arm of Murphy's Law

Rather than attracting the luck of the Irish on this St. Patty's Day, it looks like ValueClick has fallen prey to Murphy's Law. The firm already garnered unwelcome headlines when it announced its settlement with the Federal Trade Commission a month ago, an agreement to cough up $2.9 million for allegedly violating the CAN-SPAM and FTC Acts.

But it looks like they've grabbed more ink this time around, as the FTC has put out its own official announcement regarding the settlement today.

The FTC has provided more detail on what ValueClick was charged with, and what the firm has agreed to. "According to the FTC's press release, "ValueClick subsidiary Hi-Speed Media used deceptive e-mails, banner ads, and pop-ups to drive consumers to its Web sites." Like other recent settlements with the FTC and the Florida Attorney General's Office, the offers promoted free items like plasma TVs that ended up costing consumers who "were led through a maze of expensive and burdensome third-party offers – including car loans and satellite television subscriptions – which they were required to 'participate in' at their own expense, in order to receive the promised 'free' merchandise."

Perhaps more damaging, the commission alleged Hi-Speed Media and ValueClick subsidiary E-Babylon "failed to secure consumers’ sensitive financial information, despite their claims to do so."

The company now must disclose the true costs of "free" offers and can no longer make false claims about security of consumer data collected on e-commerce sites.

ValueClick originally announced the settlement February 13 in conjunction with its Q4 2007 earnings report. The firm recorded the $2.9 million charge related to the settlement in that quarter.

According to the FTC, it's the heftiest settlement based on the CAN-SPAM legislation. The agency voted 5-0 to approve the final order.

Posted by Kate Kaye at 5:02 PM | Permalink | Comments (0)

March 14, 2008

Net Neutraility - The Saga Continues

Recently, I upgraded my Verizon DSL service at home. A rep called last night with a bunch of customer experience questions, all of which I responded to with a "satisfactory" or "very good." Except one. The rep was stunned when he asked how likely I was to recommend Verizon to a friend on a scale of one to 10.

"Zero" was my emphatic reply.

He was kind of stunned and asked why. "Verizon's position on net neutrality," was my immediate response.

I'm still looking (in vain) for a viable (read under $300 per month) home broadband option. Despite being a confirmed Apple fanatic, I refuse to get an iPhone. After all, AT&T started the whole anti-net neutrality movement. And I'm still looking for new ways anyone who wants, needs, uses, or makes a living from the Web can voice their support for a free and open Internet.

I'm introducing a panel at Search Engine Strategies on Monday entitled "Network Neutrality is for On-Line Marketers, Too!" If you're attending SES, don't miss it. This issue is just too important.

Posted by Rebecca Lieb at 1:53 PM | Permalink | Comments (0)

February 29, 2008

Azoogle Wants Truste to Certify Mobile Promotions

If AzoogleAds actually engaged in fraudulent online ad practices, as the Florida Attorney General’s office has alleged, the company appears to be turning over a new leaf. In fact, AzoogleAds President Don Mathis seems quite engaged in trying to clean up the mobile content promotions sector.

In fact, he wants to work with Truste to develop a program for officially approving promotions for mobile content.

"We approached Truste to [develop] a real certification program,” Mathis told me earlier today when discussing the Florida AG's big AT&T score. Check out ClickZ's coverage. The carrier agreed to pay a total of $3 million and ensure partners that charge consumers via AT&T bills abide by new disclosure guidelines in their online ads.

He also said AzoogleAds has been in talks with the Mobile Marketing Association and carriers to establish best practices for ads and promotions pushing ringtones, wallpapers and other mobile content.

"The goal is ultimately to establish a code of conduct for the industry," he said, adding that in this case it would "have the teeth of the Attorney General behind it.”

The fact is some of these mobile content promotions are used for lead generation purposes. The IAB's Lead Generation Committee already calls for lead gen companies to follow the Federal Trade Commission's guidelines; those require that companies provide clear and conspicuous disclosure of terms and conditions associated with ads touting "free" promotions.

Mathis believes at least half of the mobile content promotions sector in terms of companies and dollars is connected to bad players using misleading ads to dupe consumers into signing up for things like "free" ringtones that end up costing. "I would say it’s north of 50 percent,” he said.

Rather than simply penalize companies and walk away, the Florida AG's approach seems like it could actually help clean up the mobile content marketing space. As part of its agreements with Azoogle, World Avenue and now AT&T, it's required that the companies assist in further investigations. It makes a lotta sense. Not only that, its decision to go after the carriers, the ones that actually facilitate the billing of these fraudulent charges, is intended to cut off the scam artists from their revenue source. Who knows? Maybe it will actually work.

Of course, new fly-by-night operations crop up all the time, making the deceptive stuff hard to keep track of. Still, if the pressure stays on the carriers, it will only behoove them to prevent fraud perpetrators from using their systems for billing.

So, who's next after the carriers? Look out ad networks, publishers and yes, the likes of Google, Yahoo and MSN – the guys serving the bad ads. Mathis told me there's "no question" Florida's Cyberfraud Task Force will consider investigating ad networks.

Posted by Kate Kaye at 5:03 PM | Permalink | Comments (0)

February 28, 2008

Background on FTC Chair Majoras and Google/DoubleClick

Federal Trade Commission Chairman Deborah Platt Majoras is set to resign next month, and now that she’s leaving, privacy advocates unhappy with the FTC’s approval of Google’s DoubleClick acquisition want the commission to cough up the Majoras papers, pronto. Center for Digital Democracy’s Jeff Chester is reminding the press of his group’s request that the FTC hand over all documents related to Majoras’ role in the acquisition case (through the Freedom of Information Act). Basically, the law firm where her husband works, Jones Day, has been involved in representing DoubleClick, which on its face, makes her involvement with the FTC decision on the merger seem ethically challenged.

It’s easy to speculate with stuff like this, so I figured I’d reiterate what I reported for ClickZ News in December when this blew up the first time around. Back then, the FTC told me “Jones Day has not appeared before the FTC on this matter."

More from that story:

DoubleClick affirmed the FTC's claim. A company spokesperson said in a written statement sent to ClickZ, "Jones Day was not engaged to represent, and has not represented DoubleClick before the Federal Trade Commission or appeared before the Commission on DoubleClick's behalf." Indeed, law firm Simpson Thacher & Bartlett is representing DoubleClick "in all aspects of its proposed acquisition by Google, including with respect to United States antitrust matters," the DoubleClick statement said.

Simpson Thacher & Bartlett's Web site confirms it has represented the ad management firm and its majority shareholder Hellman & Friedman in conjunction with the Google deal, and also represented Hellman & Friedman in its acquisition of DoubleClick in 2005. Simpson Thacher & Bartlett is also handling the case in Europe.

Posted by Kate Kaye at 2:43 PM | Permalink | Comments (0)

February 8, 2008

FTC Says New IAB Lead Gen Standards Not Exactly Groundbreaking

Just when you thought the IAB's Lead Gen Committee and the Online Lead Generation Association were getting a tad more friendly, OLGA has taken a swipe. The group has expressed its disappointment with the committee's new lead gen best practices for publishers, claiming in a statement "the IAB has not gone far enough." OLGA wants the IAB "to call for an end to the sharing of Personally Identifiable Information data by publishers with third-party marketing partners."

In that statement, OLGA said sites sharing Personally Identifiable Information with third party marketers should not only disclose they're doing so, but the disclosure should actually list the names of all the partners that could potentially receive the data. It's a sticking point for the IAB. As IAB Lead Generation Committee Chair Gayle Guzzardo told me earlier this week, the group decided against listing all partner names at the point of registration because it could cause competitive disadvantages for publishers with relationships they may not want their competitors to be aware of.

I asked her whether publishers were worried about a long list of sometimes unrecognizable company names deterring consumers from registering for promotions. She insisted that wasn't a factor.

OLGA was among the groups that assessed the guidelines before they were made public, which led me to believe maybe the two groups were burying the hatchet. But OLGA was pretty blunt about its disapproval of the IAB's guidelines. Thing is, OLGA doesn't have any official best practices at all, nor does it suggest in the standards and guidelines on its Web site that publishers should list all partners on registration pages. I was hoping to speak with OLGA about this today but got no response to requests to speak with OLGA Board Chairman Dan Felter.

Also, I'd love to know which publishers currently list all third-party marketing partners on their sites, much less on their lead gen reg pages. It doesn't seem like something they'd want to broadcast. And who's to know whether, if this actually became a standard practice, publishers would conveniently leave some names off the list?

The Federal Trade Commission's Division of Marketing Practices Associate Director Lois Greisman didn't think the guidelines were especially innovative. "The guidelines in terms of advertising disclosure do not cover new ground," she told me this afternoon. "These are things the agency has been looking at for several years…those are the basic rules of the road for Internet advertising."

Posted by Kate Kaye at 5:34 PM | Permalink | Comments (1)

February 7, 2008

Web Analytics and Your Tax Dollars

You'd think cash-strapped government agencies that operate Web sites would jump at the availability of free and very robust tools such as Google Analytics.

Think again.

Earlier this week, I was on a fascinating call with the people who run many of the major federal government Web sites. The group included one woman who does the same for a state agency. We mostly talked metrics, and what measurements to consider when gauging the performance of sites that are non-commercial in nature -- like theirs.

Given the budgetary constraints these sites operate under, we spent a good deal of time discussing free (and very low cost), Web-based measurement tools, such as Alexa.com, Compete.com, and Quantcast. And, of course, Google Analytics.

That's when the woman from the state agency spoke up. Because her site represents a state government, and because hers is not the state of California, she cannot use Google Analytics on the site she operates. Why? Google's TOS, which specify "This Agreement shall be governed by and construed under the laws of the state of California..."

That's why at least one state agency is paying for (an admittedly more robust) commercial analytics package.

OK, so it's not $3.1 trillion in defense spending. But still.

Posted by Rebecca Lieb at 2:01 PM | Permalink | Comments (0)

February 4, 2008

FTC Settles with Another Freebie Advertiser

After settling with EDP Technologies Corporation and its cohorts for $2.2 million over alleged deceptive marketing targeting "subprime consumers," the Federal Trade Commission last week settled with another firm engaging in bad lead gen practices. This time, it was Member Source Media agreeing to pay a much smaller sum of $200,000.

The company used "deceptive spam and online advertising to lure consumers to its Web sites," according to the FTC statement. Like a lot of misleading lead gen-driven ads and e-mails, they attracted consumers with promises of free iPods, laptops or gift cards. Turns out they weren't exactly free.

Like similar settlements by the FTC and authorities such as the Florida Attorney General's Office, the firm must disclose the true cost of the so-called "free" offers, and can no longer violate the CAN-SPAM Act.

The FTC and Florida AG's Office have focused on firms promoting "free" stuff. This approach appears to be working as a means of roping third-party companies using unseemly advertising techniques. The majority of the firms that have been caught in the regulatory net offer lead generation services, and collect contact info, mobile phone info, etc. on people showing an interest in free items.

We can probably expect more such settlements this year. Industry watchers believe the FTC is targeting the lead gen ad industry. Plus, we're still waiting for an announcement on Valueclick, which has admitted it is under inspection by the FTC.

Posted by Kate Kaye at 2:10 PM | Permalink | Comments (1)

February 3, 2008

Google Weighs In On Microhoo: It May Be Evil

David Drummond, Google SVP corporate development and chief legal officer, issued the company's official response to Microsoft's proposed acquisition of Yahoo this afternoon. Essentially, Google's position is combining its two main competitors could be bad for the Internet...even border on evil.

Drummond says in the official Google statement:

"It's about preserving the underlying principles of the Internet: openness and innovation.

"Could Microsoft now attempt to exert the same sort of inappropriate and illegal influence over the Internet that it did with the PC? While the Internet rewards competitive innovation, Microsoft has frequently sought to establish proprietary monopolies -- and then leverage its dominance into new, adjacent markets.

"Could the acquisition of Yahoo! allow Microsoft -- despite its legacy of serious legal and regulatory offenses -- to extend unfair practices from browsers and operating systems to the Internet? In addition, Microsoft plus Yahoo! equals an overwhelming share of instant messaging and web email accounts. And between them, the two companies operate the two most heavily trafficked portals on the Internet. Could a combination of the two take advantage of a PC software monopoly to unfairly limit the ability of consumers to freely access competitors' email, IM, and web-based services? Policymakers around the world need to ask these questions -- and consumers deserve satisfying answers.

"This hostile bid was announced on Friday so there is plenty of time for these questions to be thoroughly addressed. We take Internet openness, choice and innovation seriously. They are the core of our culture. We believe that the interests of Internet users come first -- and should come first -- as the merits of this proposed acquisition are examined and alternatives explored."

Posted by Rebecca Lieb at 5:25 PM | Permalink | Comments (0)

January 31, 2008

What Would Jeane Dixon Think About Google/DoubleClick in the EU?

The research arm of Missouri-based brokerage and investment banking firm Stifel Financial Corp. has reported that "the staff of DG Competition, the European Commission agency responsible for merger reviews, has prepared its draft 'Statement of Objection' (SO) in the planned Google (GOOG) takeover of DoubleClick."

Privacy advocates already are pouncing on this as a potential roadblock in the European Commission's approval of the deal.

Let's make one thing clear: This is a draft. The analyst firm has not reported that an SO has been sent.

I just spoke with Rebecca Arbogast, a principal analyst with Stifel who focuses on legal and regulatory issues. She was not able to tell me who she learned about the draft from, nor even what type of entities the people she's gathered this information from represent. In other words, even if this draft does indicate something, ClickZ News has no first-hand confirmation that it exists.

Arbogast told me, "If they were sure they were going to clear [the Google/DoubleClick deal], they wouldn't have done it [drafted the SO]."

She added it is common practice among government lawyers, both in the EU and the US to draft such statements in order to clarify thoughts about a particular case, whether it actually is submitted or not. Thus, there's no telling whether this alleged draft will ever see the light of day, at least from what I've gathered from her.

In the end, Stifel predicted the European Commission won't block the merger.

Just last week, observers of the acquisition jumped on a Reuters report that suggested the deal would "likely go ahead." It based this conclusion on a source's statement that the Commission had not sent Google an SO. The source said, "If they had serious doubts, we're at the point where ... if you don't send (such a statement), you don't have time to complete the case."

This information was attributed to "a lawyer acting for a client concerned about the deal."

Well, I'm concerned about the deal between the Mets and Johan Santana going through, but I don't expect anyone will be citing me or my lawyer as reliable anonymous sources on the matter anytime soon.

I've contacted the Commission's Directorate General for Competition in the hopes of confirming this information, or at least vetting it. As far as we understand, the time is close to a reasonable deadline for submitting an SO to the defense, but let's not jump to conclusions based on pure speculation.

Expect to see several stories today and tomorrow that do just that, though.

Posted by Kate Kaye at 1:07 PM | Permalink | Comments (0)

January 15, 2008

For Political Advertisers, Legalities Can Deplete Power of Web's Immediacy

Commercial advertisers may be risk-averse, but they ain't got nothin' on political advertisers. Candidate campaigns might be the worst. In my talk recently with Mindy Finn, director of eStrategy for the Romney campaign, I asked her about how she handles FEC regulations and other legal issues.

“As a political campaign," she told me, "the one layer of vetting that everything goes through is legal…everything."

Of course, commercial advertisers often have the luxury of waiting a couple extra weeks if need be. But because they're wrapped up in the news of the day -- or the hour -- political campaigns have to turn on a dime, and often the lawyers prevent that. In fact, they sometimes limit the positive impact the Web can have for campaigns, according to Finn.

“The biggest legal constraint has been it derails the value you often get from doing something very quickly, and the Web is about quick movement and quick response," she said. "Often you miss out on the edge."

Finn agreed that sometimes holdups by interactive ad tech vendors can also deplete the impact of a Web effort. I've heard that from lots of people working with political advertisers.

Another interesting tidbit from our talk: there's only so much a campaign like Romney's will spend on online media before it becomes wasteful. “I don’t think there's room for online advertising to have a much greater share [in the Romney for President ad budget]," she said. "One thing to remember is that online advertising is just so much cheaper.” Finn did admit more money could be spent on ad creative or other online initiatives, though.

Read more about the Romney campaign's online strategy here.

Posted by Kate Kaye at 4:27 PM | Permalink | Comments (0)

December 21, 2007

Congressman Barton's Squeaky Wheel Gets Google Grease

Mere days after Congressman Joe Barton sent a letter to Google CEO Eric Schmidt, complaining that Google was giving him the cold shoulder, relations have warmed between the two. According to Adam Kovacevich, Google's Sr. Manager, Global Communications and Public Affairs, the firm met with Barton's staffers all day Wednesday at the famed Mountain View headquarters for a talk on Google products and privacy policies.

As for the extensive set of detailed questions Barton submitted to "Dr. Schmidt" regarding Google's collection, storage and usage of data, Kovacevich told me the Congressman has given the firm some leeway beyond the original December 18 deadline.

Stay tuned!

Posted by Kate Kaye at 12:15 PM | Permalink | Comments (0)

December 20, 2007

Possible Remedies in Europe's Decision on Google/DoubleClick

The FTC may have OK'd the Google/DoubleClick deal, but just hold your horses. The European Commission has yet to rule on it. The EU regulators have moved their review of the acquisition into stage 2. (That's the blue, or "Guarded" level if you're going by the Homeland Security threat level gauge).

What could it mean for the two firms? Well, for starters, we can expect the European Commission to hear out competitors of Google and DoubleClick, as well as privacy groups. And chances are, they'll consider consumer privacy-related concerns in making their decision; the FTC could base its ruling only on antitrust-related grounds.

OK, so, let's fast-forward a few months and assume, hypothetically, the folks across the Atlantic have approved the acquisition. I spoke with Douglas Lahnborg, antitrust partner at Heller Ehrman last week in preparation for the FTC decision. He told me, even if the deal is green-lighted in Europe, approval could be contingent on the two firms altering their business operations to assuage competition and/or privacy concerns.

That might not be so easy, especially for Internet outfits that are by their very nature global in scope and typically without physical entities or parts they can readily sell off (as, for instance, an auto manufacturer might).

"It can be difficult for companies to put in place remedies aimed at specific jurisdictions if they have global businesses," said Lahnborg. "From a commercial point of view, they may have to roll remedies out on a global level."

Of course, operational changes, known as "behavioral" changes, would require monitoring by the regulatory body, something they may be reluctant to do.

"From the European Commission's perspective, the most attractive remedy is a structural remedy, when you get rid of part of a business," he continued.

Structural components of DoubleClick could be sold, though. Many have raised the Performics SEM business as one that could be shed to remove the inevitable conflicts of interest stemming from the world's largest search ad seller owning a major buyer of search ads.

Performics already has a potential buyer with his hand up. Earlier this month Valueclick Chief Administrative Officer Sam Paisley told the crowd at the UBS Global Media and Communications Conference in NYC the independent ad management firm would be interested in snapping up Performics. "We would want to be on the short list of people" considered for the deal, he said.

Posted by Kate Kaye at 4:47 PM | Permalink | Comments (0)

What European Consumer Advocates Are Saying About Google/DoubleClick

As the FTC finally gives the green light to Google's proposed acquisition of DoubleClick, all eyes are now on Europe's investigation of the deal.

Following its initial warnings issued in late June, consumer group BEUC has once again written to the European competition commissioner Neelie Kroes to express concerns over Google's proposed $3.1 billion acquisition of Doubleclick.

The BEUC (The European Consumers' Organisation), which represents 41 pro-consumer groups from across Europe, is arguing that the deal is "not in the interest of European consumers." The letter cited three main areas of concern: pricing and competition, harm to consumers, and matters of privacy.

Firstly the correspondence suggests that the deal would have a significant negative impact on pricing, and could ultimately impede on publishers' revenue. It states that Google would be free to raise prices and prevent rival networks from using Doubleclick's technology, resulting in Web publishers seeing "a reduction in the revenue they receive from Google" and passing these costs on to the consumer.

On competition grounds it argues that the deal would place the entire online advertising market in jeopardy, as the company would "dominate both major pipelines for online advertising." It goes on to state that "there will be no real alternative to the combined entity for advertisers and web publishers," which will apparently result in the "significant harm" of European consumers.

Finally the letter expresses concerns over consumer privacy and welfare, stating that the merger would create a structure that would "almost certainly be less respectful of user privacy." It argues that privacy protection is a competitive differentiator in the ad serving market, and that the merger would eradicate incentives for Google to innovate in the area since competition will have been diminished.

The European Commission is now carrying out a second-phase investigation into competition concerns surrounding the deal. As previously reported by ClickZ news, disapproval from the European Commission is likely to result in a collapse of the entire deal irrespective of the FTC's decision, since both companies generate significant revenue from within Europe.

Posted by Jack Marshall at 1:06 PM | Permalink | Comments (0)

December 14, 2007

Well Recuuuse Me…Or Not: FTC Says No to Recusal Request

Who says the Federal Trade Commish doesn't move fast enough? Two days after privacy groups the Electronic Privacy Information Center and Center for Digital Democracy filed a complaint requesting the Chairman recuse herself because of alleged conflict of interest, the FTC has come back with a big fat, "N-O."

The organizations contended Chairman Deborah Platt Majoras should remove herself from the review process, since, they claim, her husband's law firm Jones Day has advised DoubleClick on the antitrust components of the deal in the U.S. and overseas. The FTC stands by what DoubleClick has said: that Jones Day is not representing the company in the U.S.

In a statement just published by the FTC, Majoras wrote, "I have determined not to recuse myself from this matter because the relevant laws and rules… neither require nor support recusal."

She also noted, "The FTC’s Ethics Official determined that… no impartiality conflict exists. Further, he determined that, even if my participation in this matter could reasonably raise an appearance issue, the Standards of Conduct did not dictate my recusal."

Another interesting tidbit:

The Commission was unaware of Jones Day’s representation in Europe. But even if we had been aware sooner, assuming that the conflict analysis resulted in the same recommendation to continue participating – and I have no reason to believe it would not – the fact that I had reviewed with the FTC’s Ethics Official a potential conflict and determined not to recuse myself would not have been announced. Under applicable ethics rules, there is no requirement or, as I understand it, even expectation, that Commissioners publicly reveal that they are not recusing themselves on matters; indeed, that has not been the practice.

Also, it appears Commissioner William Kovacic's wife also works for Jones Day. He, too, has decided not to recuse himself. Both his wife and Majoras's husband have converted to nonequity status at Jones Day, according to the FTC.

Posted by Kate Kaye at 12:53 PM | Permalink | Comments (0)

December 11, 2007

Verizon Gets Evil-er

Net neutrality opponent Verizon is busy on other fronts in its efforts to break the Internet -- and to profit in the process.

Last June, the broadband provider announced a plan to "help" users who mistype domain names into their browsers by redirecting to an "Advanced Web Search" page bearing Yahoo search results -- and Yahoo Publisher Network's ads on Verizon's own pages. This DNS redirect service allows the ISP to profit off of its users' errors (but they aren't always errors, as I'll illustrate below), while at the same time overriding other search pages and, as Verizon acknowledges, causing other potential technical problems.

Recently, many of Verizon's high-speed FiOS customers in varying pockets of the country have fallen victim to the hijacking, which seems to be spreading. My Brooklyn-based friend (and Verizon DSL customer) Steve shot me an enraged e-mail the other day full of examples of how Verizon is hijacking not mistyped URLs, but rather the "naked domains" (to coin a phrase) virtually all experienced users have been trained to type in the address fields of their browsers.

The examples he provided include typing "google" (rather than painstakingly typing "http://www.google.com"), "gmail," "apple" and "gawker." As Steve put it, "It goes to a Verizon page with a bunch of clickly links and the URLs in eensy-teensy type below...I can type other things and it behaves normally...but this thing is a freakin' ROADBLOCK."

And it happened out of the blue. My friend is no Web savant, but he's reasonably Web savvy. Verizon is quite obviously overriding his Firefox browser.

Verizon's DNS redirects are not, as the company claims, helping customers who make typos. They're leveraging -- and hijacking -- established Internet user behavior. Overwhelmingly, users type naked brand names directly into their browsers' address fields, confident they'll get to their intended destination. Unless, of course, they're Verizon customers. The redirects can strike anywhere, anytime.

Oh, but Verizon is playing the opt-out card. Only way too subtly, and making opting out of these redirects way too difficult for the average user. See any opt-out instructions on this Advanced Web Search page? Hint: click the "About This Page" button in the upper right hand corner. The link takes you to an about page with yet more links for opting out (depending on the type of service you subscribe to. You're then presented with a long list hardware options, each with its own set of opt-out configuration instructions.

But wait -- it gets even worse. For kicks, I clicked on the Westell Ethernet Modem Verizon provided me with for my DSL service, only to find the message "to change the DNS server settings in this modem to opt out of the DNS Assistance, you must change your DNS settings in your operating system."

Another click to find those instructions reveals a dead end. Verizon only provides information for changing DNS settings for various Windows platforms. Mac owners (like Steve and I) have just followed six links to nowheresville. As he put it, "somewhere {there's an opt-out option, but then it seems unduly complicated."

Posted by Rebecca Lieb at 10:28 AM | Permalink | Comments (0)

December 10, 2007

NY Transit Authority's Webinar Falls Flat

The New York Metropolitan Transit Authority's “Public Engagement Webinar” turned out to be the road to nowhere.

The MTA's proposed fare hikes have been strongly opposed by riders. Following several months of public hearings, the body decided to at least not to commuters by offering them an opportunity to weigh in on the fare hikes, and to ask questions of officials.

According to reports, their efforts fell flat -- together with the technology. Participants failed to get their questions answered, or to see questions posted by others as promised.

The MTA has apologized for the disconnect and is promising to answer questions on its site.

It's doubtful New York's bus and subway riders are feeling any more empowered -- obviously the point of the Webinar -- nor any happier about looming fare hikes. Blog posts and comments on MTA-related news stories are dominated by enraged riders venting their collective spleen.

Posted by Rebecca Lieb at 3:32 PM | Permalink | Comments (0)

December 5, 2007

Net Neutrality: What Can We Do?

Reformed telco executive David S. Isenberg, author of the influential essay
The Rise of the Stupid Network: Why the Intelligent Network was a Good Idea Once but isn't Anymore, delivered the morning keynote today at SES Chicago. His talk was entitled "Five Reasons Why Search Engine Marketers Need a Neutral Net."

One hopes, and assumes, he was preaching to the choir. Net neutrality may be the single most important issue facing anyone who uses the Web, for anything and in any capacity. This includes businesses, consumers, and not in the least, marketers.
As Isenberg put it in his talk, the telcos are "declaring war against Google, and Vonage, and ClickZ, and everyone in this room."

They are. The burning questions is what to do about it. Having written to congress, educated ourselves (and to an extent, our customers and users), how else can proactively we battle the telcos' efforts to kill the Web?

Companies like Google can afford to hire lobbyists. But what about the rest of us? In this industry, why aren't the major trade organizations such as the IAB, DMA, AAAA and ARF taking a solid stand, and rallying their members around this critical cause?

As consumers, what can we do beyond letter-writing and petition-signing? I've vowed to replace my home provider, Verizon, by the end of the year. It kills me to pay a monthly fee for Web access to a company trying to break the Internet.

That option, however, is largely limited to residents of major urban areas. Most ISP subscribers have no alternate providers in their areas, nor can they afford the often higher fees they charge.

How are you fighting for net neutrality, on both a personal and professional level? Please share your ideas with me, and I'll share the best of them in a future post.

This issue is too important to ignore, folks.

Posted by Rebecca Lieb at 11:22 AM | Permalink | Comments (0)

November 29, 2007

Google Doubleclick Decision by Mid-December?

A trusted source told me a Federal Trade Commission decision on Google's acquisition of DoubleClick could come by the middle of December. Wow, now that could make for some serious holiday celebration and/or lumps of coal depending on whose side you're on.

Posted by Kate Kaye at 9:31 AM | Permalink | Comments (0)

November 15, 2007

Florida AG Slaps Italian Firm with Cyber Fraud Suit

The Florida AG's office has struck again. After getting AzoogleAds to "contribute" $1 million to Florida's Department of Legal Affairs Revolving Trust Fund last week, Attorney General Bill McCollum and his trusty new CyberFraud Task Force announced it is suing Buongiorno USA, a digital entertainment firm.

The Office claims the company has greeted consumers' cell phone bills with charges for ringtones they were duped into believing would be free. "In the lawsuit filed yesterday, Attorney General McCollum asked for a permanent injunction against the company, substantial penalties and restitution to all customers who were taken advantage of by the misleading internet marketing," states a press release from the AG's Office. "The lawsuit also seeks to stop the deceptive sale of other cell phone content that is falsely advertised as 'free,' such as horoscopes, jokes of the day and wallpapers."

The Italian name is no mistake. Buongiorno USA's parent is Buongiorno S.p.A. Yes, an Italian firm. Buongiorno USA does business here as Dirty Hippo and Blinko. It looks like there's been a class action suit filed against the company, too.

As reported by ClickZ News last week, Azoogle got slammed for pretty much the same thing. Though, rather than settling out of court and being fined, the company signed an "Assurance of Voluntary Compliance," made a $1 million "contribution" to cover legal costs and fund future cyber fraud investigations, and even agreed to help out with future investigations.

The Sunshine State AG is also suing World Avenue U.S.A, which has operated under the name NIUTech, for deceiving consumers through online ads making free gift claims.

The AG's office seems to be paying special attention to lead gen companies offering free ringtones and other mobile content. Search ads and other ads promoting these not-so-freebies tend to lure kids who can be misled into divulging private data and unwittingly signing up for paid mobile content subscriptions (like the kids who ride the #80 Jersey City bus everyday whose obnoxious walkie-talkie phones have equally obnoxious ringtones).

Posted by Kate Kaye at 1:36 PM | Permalink | Comments (0)

November 1, 2007

NAI Could Get Blasted Tomorrow at FTC Showdown

Expect the Network Advertising Initiative to be a target of some privacy advocates present at tomorrow's Federal Trade Commission Town Hall event. Specifically, a representative of the World Policy Forum warned today the group will release a critical analysis of what they believe to be the NAI's unsuccessful attempt at industry self-regulation.

As for the rest of the first day, while listening in to the webcast, I couldn't help but be reminded of tuning in to my favorite New York baseball talk radio show last night. An insipid caller decided to describe to the audience in the most laborious manner possible what he planned to tell us, rather than simply launching right into his comment.

That's kind of what today's Town Hall felt like. There were a lot of statements prefaced with phrases like, "what we need to discuss is…" or "what I hope we can focus on during the next two days is…."

Sure, the FTC is holding the event in order to help determine what the most common and important concerns are surrounding behavioral targeting, Internet tracking, and data collection and usage by convening the industry, its observers and its critics (more than 300 in attendance, according to an FTC source). And, while major themes emerged, including consumer control of data, data security, transparency in terms of data usage, and the effects or behavioral targeting on youth, I'm still not too sure if I learned anything new.

FTC Hints About Behavioral Investigation
I assume the FTC commissioners may have learned things, or at least are closer to pinpointing exactly what it is they might focus on, if indeed they do decide to investigate the BT industry.

Will they? Well, early in the day, FTC commissioner Jon Liebowitz did hint, "The marketplace alone may not be able to solve all problems inherent in behavioral marketing….If we see problems…the commission won't hesitate to bring cases, or even break thumbs," he jested. (Really, though, he did chuckle after he mad the mob gag).

On Google/DoubleClick
Liebowitz also stressed (as did Google's Manager, Global Communications and Public Affairs Adam Kovacevich did in an e-mail to the press this afternoon), that the FTC can only address whether the acquisition would affect industry competition, not privacy issues.

Google ad man Tim Armstrong said during the forum he hopes the FTC will "tread lightly," and stated "I think we're a very small fish in a big pond in the display advertising business in general….We would want to be able to be compete in the display business."

Representative Markey Makes a Mark
Just in time for the conference, Representative Edward Markey (D-MA), senior member of the House Energy and Commerce Committee, released a statement recommending the FTC "promptly investigate" what he called "invasive online advertising practices." Specifically, he said, "When consumers search for information online, they may be unaware of marketers in their wake, who are scooping up the digital traces of consumers’ online activities and compiling profiles that could undermine privacy."

Posted by Kate Kaye at 5:07 PM | Permalink | Comments (0)

October 12, 2007

Lead Gen Acquisitions Continue Despite Industry Scrutiny

This post was reported and co-written by Jack Marshall.

Following a small investment in 2006, The Washington Post Company has acquired the remainder of stock in online lead generation provider CourseAdvisor for an undisclosed sum.

CourseAdvisor generates student leads for the post-secondary education market. Reportedly, more than 1.5 million students utilise the company’s online directory to unearth degree and certificate programs from over 500 educational institutions.

The lead gen sector is facing increasing scrutiny from the FTC, as well as increasing pressure from the Interactive Advertising Bureau and others in the industry to establish best practices.

The good guys in the sector (as well as the black hats disguised as white hats) are finding it increasingly compelling to reach out to press outlets like ClickZ to ensure us most industry players are on the up and up and, despite some internal industry spats, they're working to get solid standards in place.

ClickZ has no indication that CourseAdvisor has engaged in any bad practices, or that the firm has been questioned by the FTC in its broader investigation. Still, when a large, well-known firm with a reputable brand name buys a firm doing business in an industry that's under government scrutiny, it piques our interest.

When quizzed on the FTC’s recent investigations into the lead generation industry, Rima Calderon, director of corporate communications for WashPost told ClickZ News, "We are not aware of any investigation into any of the business practices of CourseAdvisor.”

As for what the firm will do with its new acquisition, she stated, Washpost are looking to CourseAdvisor to “continue its current business as it explores new lines of business." The company will continue to operate as a subsidiary to the Washington Post Company, and independently of Kaplan, their education services provider company.

Lead gen observers have said education advertisers continue to fuel the industry, which has suffered from a dip in investment from financial services firms following the recent credit crisis.

Other acquisitions of lead gen firms are taking place -- or rumoured to be in the works-- including Azoogle’s purchase of lead gen firm Bazaar Advertising, suggesting the recent negative attention surrounding the lead gen segment is by no means acting as a deterrent.

Kate Kaye co-wrote this post.

Posted by Kate Kaye at 1:38 PM | Permalink | Comments (0)

October 11, 2007

Azoogle Buys Another Lead Gen Firm as Sector Scrutiny Persists

Lead generation firm Azoogle.com announced today it has purchased another lead gen firm, Bazaar Advertising. No deal terms were disclosed.

Of course, the term lead gen has gotten a bad wrap since the Federal Trade Commish has been poking around the sector and since ValueClick confirmed it's among the firms being investigated by the FTC for its lead gen practices. So, in the press release, Azoogle is calling itself "an end-to-end online marketing solutions provider," and Bazaar "a marketing services and search engine management company that specializes in the discovery, purchase and optimization of online search campaigns."

I have no idea what that means, but on the Bazaar site, it clearly states, "Bazaar Advertising is a lead generation company focused on developing and applying proprietary web-search advertising technology for our clients."

The lead gen industry is getting a lot of attention lately, including from the Interactive Advertising Bureau, which just put out a release today calling on lead gen firms "to adopt the recently released 'Lead Generation Data Transfer Best Practices' by April 1, 2008." (See Matthew's post below.)

Expect the spotlight on this sector to grow hotter before it flames out.

Posted by Kate Kaye at 4:32 PM | Permalink | Comments (0)

October 5, 2007

SEC Touts Its Fight Against Stock Manipulation Spam

Three companies, accused of being susceptible to delivering spam that could manipulate stock prices, were forced on Thursday by the Securities and Exchange Commission to suspend trading securities for 10 business days.

The SEC, in a statement, said the three companies failed to provide adequate and accurate information about themselves to investors, and as a result, could be susceptible to engaging in stock-touting spam. The SEC didn't state whether these companies, which all trade over-the-counter securities, delivered such spam.

The SEC said its actions are part of an initiative, launched in March, to fight spam-driven stock market manipulation. Since that time, the SEC reported suspended trading in the securities of 39 companies. It also said it brought several spam-related enforcement actions.

In the latest round of trading suspensions, Alliance Transcription Services (ATSS), Prime Petroleum Group (PPGU), and T.W. Christian (TWCI) are temporarily barred from trading its securities. The ban is lifted after Oct. 17.

Executives from the three companies could not be reached to respond to the SEC's actions.

The SEC said its anti-spam efforts are paying off, citing an Internet security threat report published last month by Symantec. Spam related to financial services accounted for 21 percent of all spam during the first six months of 2007, down from 30 percent during the last half of 2006, according to Symantec. The security software vendor singled out the SEC's actions for the decline.

Financial spam, once No. 1, has been surpassed by spam promoting commercial goods and services, including counterfeit designer purses and watches, according to Symantec.

Posted by Anna Maria Virzi at 1:47 PM | Permalink | Comments (0)

September 11, 2007

Modavox Continues Threat to Behavioral Firms, Omniture Joins Behavioral Patent Holders

Behavioral targeting tech firms beware: Tacoda's recent bete noire Modavox continues to threaten the behavioral sector with its patent-wielding power. The company, which filed suit against the newly-acquired Tacoda last month, claims its latest patent, awarded today, will give it even more legitimacy in the eyes of the courts.

Essentially, the new patent acts as an addendum to the original which was filed in 1999 and issued in '03. It tacks on more claims in an effort to keep the initial patent up to date and, in this case, actionable in court.

Web analytics, optimization and behavioral targeting tech outfit Omniture also touted its latest behavioral-related patent today. The method patent, awarded on August 21, deals with its behavioral targeting and testing systems for content and ad targeting, as well as revenue yields for performance-based and search engine advertising.

No word yet as to whether Omniture intends to license the technology or sue alleged infringers as a result. The company hasn't yet responded to my requests for comment.

Posted by Kate Kaye at 5:01 PM | Permalink | Comments (0)

August 10, 2007

FTC Serves Gooey Greasy Gobs of Subpoenas to Food Cos.

Looks like the Federal Trade Commission sent subpoenas to a bunch of food cos. today requesting details on their marketing efforts. According to an AdWeek story, they want to know about "spending and strategies targeting kids and teenagers across virtually all measured media, including TV, radio and the Internet. Specifics on targeting by age, gender, ethnicity and other factors are required."

In the crosshairs are Burger King, Campbell Soup, Coca-Cola, Dole, Kellogg, Procter & Gamble, PepsiCo, Wendy's, McDonald's, Kraft, Mars, and others.

The FTC never comments on ongoing investigations, so at this point who knows what it will mean for the Web, considering these companies were among the first to, as kid marketers often used to say, "immerse kids in brand experiences."

Posted by Kate Kaye at 4:50 PM | Permalink | Comments (0)

May 31, 2007

Agency Orgs Ask FTC to Assess Recent Acquisitions

Advertisers, like most of us, have little clue as to what major online ad industry acquisitions, particularly Google's DoubleClick buy, will mean in the long run. They're hoping the Federal Trade Commission can help 'em figure it all out. According to AdAge, the American Association of Advertising Agencies and the Association of National Advertisers sent a missive to the FTC before the commission announced Friday it will look into the DoubleGoo deal.

In the story, ANA CEO Bob Liodice stresses the agency orgs want the FTC to look at all the recent acquisitions (Yahoo/Right Media, Microsoft/Aquantive, WPP/24/7, etc.). "We asked in a very neutral kind of way to say, 'would you please take a look?'" he's quoted as saying.

I haven't tracked down a copy of the letter sent to the FTC, but here's a bit of what the story quotes: "These mergers, if approved, certainly would change the online advertising marketplace. As such, those proposed combinations deserve careful scrutiny. It is essential to ensure that none of these combinations restrict competition in the internet advertising marketplace."

The story also points to the fact that Google filed a notice with the FTC after announcing the DoubleClick buy, which was followed by an FTC request for more info on the deal. Google said it will comply.

Posted by Kate Kaye at 11:36 AM | Permalink | Comments (0)

May 30, 2007

Zango Points Finger at Google in Suit Against PC Tools

Zango is suing the makers of a spyware blocking app for a minimum of $35 million, and it looks as though Google might have something to do with the decision to file the suit.

Zango claims that its "consensually installed" software "has come under surreptitious attack" by a Spyware Doctor Starter Edition from PC Tools, so Zango's suing PC Tools. According to the claim (view the PDF here), "Spyware Doctor provides the computer user with no specific warning that Zango's software application will be deleted; instead, Zango's software simply vanishes from the user's computer, leaving Zango with no means of contacting or communicating with its customers."

Evidently, because Spyware Doctor comes with the "Google Pack" of software, a whole lotta people have downloaded it, meaning, according to the suit, "Zango has suffered irreparable harm to its business model and reputation that continues day by day."

And this is interesting, too: "Zango has also learned that consumers downloading the Google Pack after March 29 who did not already have Zango's software installed are now wholly unable to install Zango software, thereby eliminating Google Pack users as potential Zango customers." The complaint says G Pack labels Zango software as an "Infection" engaged in a "Malicious Action." Zango wants no less than $35 million in damages.

A post on tech lawyer Eric Goldman's blog alerted me to the suit. He's not so sure it's the best move by Zango. However, he does concede, "At some point we're going to have to reach a social consensus about what level of user authorization is required for one software program to annihilate another program. Maybe this case will help us understand that issue a little better."

Posted by Kate Kaye at 12:41 PM | Permalink | Comments (1)

May 10, 2007

Utah Lawmakers Shrink from Search Law

It looks like Utah has its trademark tail between its legs. By way of Eric Goldman, the Bureau of National Affairs reports that the state won't implement the Trademark Protection Act for at least a couple months. It seems as though tech firms like Google, Yahoo, Microsoft and eBay (reps of which trekked over to Salt Lake City late last month to discuss their displeasure with the law) threatened to sue, causing the legislators to shrink away from their original law.

That law would have established a registry for special electronic trademarked terms and prevented non-trademark owners advertisers from targeting search ads to terms in that database to residents of Utah. (See ClickZ's in-depth coverage of the law's origins and potential implications for Utah industry.)

According to my sources, those firms were supposed to have met again with Utah lawmakers sometime around last week. From the beginning, firms including Google were not happy (to say the least) with the law and had no intention of making accommodations for it (like, say, making it easy for advertisers to exclude Utah from search ad campaign targeting).

Think this law will fade into oblivion or be implemented as a shell of its former self? Time will tell.

Posted by Kate Kaye at 9:44 AM | Permalink | Comments (0)

May 1, 2007

Google Denies, Viacom Gets Glib

Google has finally responded to Viacom's copyright infringement suit against its underling, YouTube. Google essentially denies all claims made by Viacom, other than the fact the company has acquired YouTube and its users are allowed to upload video to the site. (Check out the document and count the number of lines that begin, "Defendants are without sufficient knowledge," or "Defendants deny".

The crux of Google's defense, according to the response, filed April 30:

By seeking to make carriers and hosting providers liable for internet communications, Viacom's complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment, and political and artistic expression. Google and YouTube respect the importance of intellectual property rights, and not only comply with their safe harbor obligations under the DMCA, but go well above and beyond what the law requires.

Reports note Viacom has issued a comeback statement, claiming "It is obvious that YouTube has knowledge of infringing material on their site and they are profiting from it. It is simply not credible that a company whose mission is to organize the world's information claims that it can't find what's on YouTube."

Posted by Kate Kaye at 12:34 PM | Permalink | Comments (0)

April 11, 2007

Congress to YouTube: No Terrorist Propaganda!

CGM jihadists beware. Last month a bill was proposed in the U.S. House of Representatives requiring "that corporate owners of websites that share user-posted videos should take action to remove jihadi propaganda."

Hey, get in line Congressman Shuster. Viacom's first.

Posted by Kate Kaye at 4:30 PM | Permalink | Comments (0)

March 7, 2007

Tacoda Guidelines in Line with IAB Aim to Influence Congress

Tacoda put out a press release today laying out its internal laws for data usage in regards to its behavioral ad network. There's not much new here, really, but I see a correlation with the announcement, the firm's related efforts, and a new group Tacoda Chairman Dave Morgan is heading up for the IAB, its new Public Policy Council.

First, the Tacoda Guidelines
When it comes to advertisers, they own their campaign data, and information collected on their sites is theirs and won't be shared with other firms or employed for other advertiser campaigns.

When it comes to publishers, they own their audience data, which is used only on an anonymous, aggregated basis for campaign reporting or external communications. Also, according to the release, "Publishers are transparently compensated for their data when it is used for a targeted ad delivery."

As for users, the company said it will provide notice to all users and the ability to opt-out of the ad targeting system. Also, Tacoda reiterated the mantra of all behavioral targeting firms, noting they never collect or use Personally Identifiable Information.

The firm also mentioned two newer guidelines for users, originally announced in November: Sensitive data regarding health or children's ages won't be collected or used to target ads, and cookies are set to expire after one year. In my story regarding these two commitments, Tacoda's Morgan also mentioned info on sexual preference would not be used to target ads.

"You don’t need to do stuff that would make an average consumer's skin crawl," he told me at the time. "It doesn't serve anybody to do stupid things."

Preemptive Strikes
Tacoda has been making a concerted effort for quite some time now to set itself apart from the black hats of online advertising, recognizing behavioral targeting can be controversial. Especially among the less savvy, behavioral targeting can be lumped in with spyware as a privacy-invading technology. While people familiar with Tacoda, Revenue Science, AlmondNet and other BT firms realize behavioral targeting is not the same, the fact is many people don't.

The IAB/Capitol Hill Connection
The people who matter more and more to firms like Tacoda -- and the rest of the online ad industry for that matter -- are the ones who will be carving out federal legislation on Web privacy, spyware, and other ad technologies. So, announcements like these are made by Tacoda, it seems, in the hopes of obviating the sting potential regulations could inflict on the company.

Being named as an example of what some populist politician wants to save us from could be devastating for any firm. And though it's unlikely Tacoda would be named among the alleged bad players, why take the risk?

It just so happens that Morgan is heading up the Interactive Advertising Bureau's recently-formed Public Policy Council. IAB CEO and President Randall Rothenberg told me today that group will focus initially on "the potential threats from ill-considered spyware and privacy legislation."

Posted by Kate Kaye at 5:10 PM | Permalink | Comments (0)

Ads on Coulter's Blog Spawn Anti-Brand Ire

Ann Coulter's blog was down for hours and hours today, likely the result of an attack. Calling presidential candidate John Edwards a "faggot" didn't go down too terribly well in many circles. Newspapers have dropped her column like a hot potato, and advertisers, including Verizon, Sallie Mae, and NetBank, hastened to abandon her blog.

Yet network ads are still running on her site. Once I finally reached it today (after trying intermittently for seven hours), Commission Junction was serving ads for major brands including Yahoo, Circuit City, and USA Today.

This sort of negative brand association will doubtless spawn discussion of the dangers of advertising on blogs and other forms of CGM. But Coulter, like her or not (if you're capable of pushing her contemptible comment aside for a moment), is a big gun.

Agency media buyers and ad networks work hard to further their clients' goals, but this sort of thing can, and obviously does, happen -- and no one can anticipate it. Advertisers really can't opt-out of sites like this one before the fact.

But what contingency plans are in place to prevent incidents like this one from occurring, or at least to stem the damage once something like this happens? A reader wrote in today, "Does Yahoo support extremist political messages like this? Is Yahoo prejudiced against gays?"

It's time ad networks developed a crisis-management plan, but defining the parameters won't be easy. Should they automatically pull ads from sites that generate too much negative controversy? Reach out to advertisers (or their agencies) offering an opt-out? After all, advertisers re likely unaware they're even associated with sites espousing high-profile, incendiary hate.

Definitely food for thought, although even on that topic Coulter and I differ, as usual. When I finally hit her homepage today, the headline (dated Feb. 28) was "LET THEM EAT TOFU!"

How on earth did she know what I was having for lunch at that precise moment?

Posted by Rebecca Lieb at 2:50 PM | Permalink | Comments (0)

February 21, 2007

This Bud.tv Ain't for You, Kid

It's been a rocky start for Bud.tv. The online video site launched earlier this month and already it's got legislators putting it in their crosshairs. A letter was sent to Anheuser-Busch from the attorneys general of 21 states warning that the site was too accessible to under-age viewers, according to Ad Age Digital.

I checked out the Bud.tv site and found myself immediately confronted with an age verification registration page and an image of a smiling chimpanzee, which was enough to keep me from going any further. Still, kids can be determined.

The letter itself doesn't hold any legal weight, but it's not unlikely that the various attorneys general might sue the beer giant, as suing is what they do best. And there's no word on whether Anheuser-Busch will change the way they run Bud.tv, but personally, I'd recommend getting rid of the chimp.

Posted by MatthewNelson at 12:11 AM | Permalink | Comments (0)

January 30, 2007

Priceline Responds, NY Conflates Adware and Spyware

I got a call from Priceline after filing a piece on New York's adware settlement with Priceline, Travelocity and Cingular and the potential impact on brand advertisers. According to Brian Ek, Priceline's VP of communications, the company supports the New York Attorney General's position on adware, has not used any adware providers since the end of February 2006, and enacted an adware policy that meets all of the AG's requirements that is published on their Web site.

All this is well and good. The problem is the muddled use of the term adware on the part of the AG in the settlement that seems to conflate adware and spyware, two very different things. Lots of people have adware on their computers and dig it. Pretty much any ad-supported software is adware. I won't name any particular adware products since I'd rather not wake up tomorrow morning to a stream of angry e-mails from companies that don't want to be put in that category.

The department's press release states, "Direct Revenue installed adware programs onto millions of computers worldwide that delivered a steady stream of advertisements, monitored web sites visited by users, and collected data typed into web forms — without adequate notice or the consent of consumers. In addition, the adware programs were difficult to remove and consumers who had previously downloaded the company’s programs without full notice and consent, known as 'legacy users,' continued to receive Priceline, Travelocity and Cingular ads through those programs."

What they are describing here is spyware, not adware. Or at least, they don't seem too sure what they're describing. Spyware is the nasty stuff, the stuff that is automatically installed on users' computers, tracks their interactions online, or grabs personal data -- all without user consent. Adware just serves ads, and trackware keeps track of their Web interactions, but the use of both is considered a legitimate advertising practice if specific guidelines are followed. Truste has outlined definitions and has been working on certifying this stuff for over a year or so now.

The NY settlement language, and evidently suits filed when Spitzer helmed the NY office, can't seem to keep this stuff straight. This, my sources have implied, might have something to do with why NY's Internet Bureau was OK with settling. It gives them good press, makes them look like heroes, and scares off other advertisers who might actually use it.

Posted by Kate Kaye at 6:27 PM | Permalink | Comments (1)

January 3, 2007

DOPA Dead (probably)

School kids all across the country may be breathing a sigh of relief that Congress has finished its session, and they can still log onto MySpace because of it. Well, maybe.

Reason being that the Deleting Online Predators Act (DOPA), H. R. 5319, bill was never addressed by the 2006 Senate, and as such will have to be reintroduced if it's ever to see the President's desk for a signature, as noted by education pundit and blogger Andy Carvin.

The DOPA bill was introduced in May of last year by Rep. Mike Fitzpatrick, as an attempt to protect school kids from online sexual predators as well as obscene and pornographic imagery. The bill would have restricted public school computers from accessing social networking sites like MySpace and Facebook. It passed through the House in July, but has since then languished in the Senate where the vague nature of its wording was seized upon by critics and it seems unlikely to be reintroduced.

Posted by MatthewNelson at 6:21 PM | Permalink | Comments (0)

December 29, 2006

AT&T Pledges Net Neurality - Or Does It?

AT&T has offered concessions to the FCC to facilitate its $85B buyout of BellSouth, including
a promise to observe network neutrality principles for at least 30 months, as well as guaranteeing low cost DSL access for that time period.

Techdirt quotes Dave Burstein as pointing out while AT&T has promised to uphold network neutrality on their primary network, the fine print reveals this doesn't apply to the Internet Protocol television (IPTV) high-speed network. In other words, "AT&T promises not to violate network neutrality on a network they never intended to use that way, and carves out permission to use it on their new network, where they had planned all along to set up additional tollbooths."

Final approval of the buyout requires a vote of the FCC commissioners.

Posted by Rebecca Lieb at 10:11 AM | Permalink | Comments (0)

December 27, 2006

Net Neutrality/Data in New Congress? Don't Hold Yer Breath

What's in store for Net neutrality, data security and other hot button Web issues now that the Dems are running Congress? InternetNews has a story that provides a bit of an indication, though at this point we can't be sure how things will shake out.

The story implies admonishment of the Republican-led Congress for not passing "legislation involving network neutrality, data privacy, telecom reform, data security, electronic surveillance or data-breach disclosure requirements," nor funding research along these lines.

I'm tempted to comment, but I'll leave my two cents out of it.

Reporter Roy Mark asked Dave McGuire of the Center for Democracy and Technology (CDT) what he thought we could expect. Since over 50 House Dems were among those voting to turn back a telecom bill amendment involving net neutrality, McGuire commented, "I wouldn't try to read the tea leaves on that one."

He has more hope that some data privacy rules will be passed, as does Liz Gasster, general counsel for The Cyber Security Industry Alliance (CSIA), who said in the story, "I really believe something will get done about it this year….If there was ever momentum and a clear mandate, the time is now." Evidently "jurisdictional disputes" are what held back data privacy bills from being passed in the last Congress.

Another CSIA representative said the multiple state laws dealing with this are a drag on e-commerce. Could be, but all signs are pointing to a boost in online sales this year, even increasing as Christmas neared.

Of course, the pundits interviewed noted this coming Congress will be preoccupied with other stuff, like, uh, the war and the budget. Oh, and let's not forget about a little presidential race that's already gearing up.

My bet is that we won't see any federal legislation that does any more than pay lip service to the Net neutrality issue. Maybe something in the data security and privacy realm might hit the floor, but the fact is (and call me a cynic) the government wants access to any and all of our data for pretty much ever. That means it will be exempt from whatever laws are put in place, most likely making them moot where civil liberties are concerned. Remember CAN-SPAM, where they conveniently wrote themselves out of the law?

Posted by Kate Kaye at 11:21 AM | Permalink | Comments (0)

November 27, 2006

Lawyers Want the Law Outta Their Blawgs

Was Bob Loblaw's Law Blog a marketing initiative warranting regulation? Sure, he was just an Arrested Development character, but thousands of lawyers "blawg" all the time. A story from The Chicago Tribune (by way of St. Louis-based STLtoday.com) ponders that question.

The story notes the case of Kentucky attorney Ben Cowgill, who's law blog was found to be "no different than a law firm website," which The Kentucky Attorney's Advertising Commission had considered advertising subject to approval by the commission. Submitting ads for approval cost $50 before the commission "reached a compromise with Cowgill that has become the working policy of the commission on blogs," according to the article. "Kentucky bloggers don't have to pay $50 every time they post a new entry, but if the blog contains a link to biographical information about the lawyer, that page has to be submitted to the state with a one-time fee."

Though this decision seems purely based on the desire to garner tax dollars, the overall issue is an intriguing one. Surely lawyers are not subject to ad regulations when chatting with acquaintances about legal issues, so why would their blog opinions or discussions fall within those parameters? I suppose the fact that they can be traced, unlike in-person conversations, makes them that much more open to government scrutiny.

Is this something the FTC will tackle someday? Possibly. The commission is grappling with the WOM marketing phenomenon, trying to determine how or if it should be regulated. As our communications become increasingly digitized, will regulatory entities extend their tentacles into professional conversations or personal conversations involving commercial brands? It seems unlikely now, but the legal blog/advertising issue raises all sorts of questions.

Posted by Kate Kaye at 1:39 PM | Permalink | Comments (1)

November 17, 2006

MySpace Moves to Enforce Copyrights

MySpace, and other social media sites, often have the reputation of being overrun with copyrighted material, scaring off advertisers who've had their content stolen or who just don't want to be found in such an environment.

Today, MySpace, owned by Fox Interactive Media (FIM), unveiled a new tool for copyright holders allowing them to easily identify their content when it's uploaded, and alert MySpace to have it removed if it's an unauthorized use. The tool is being tested with FOX and MLB Advanced Media and will be expanded to include other verified copyright holders. MySpace has also created a system to block videos that are removed from being re-uploaded to the site by other users.

The network has frowned upon misuse of copyrighted materials since its inception, and has had a "notice and take down" process in place. This should make it much easier and quicker to enforce. The company has already implemented a similar system for music with partner Gracenote, whose fingerprinting technology will help prevent unauthorized music from being posted by users to the site.

Earlier this week, video sharing site YouTube, now owned by Google, announced the NHL as one of the first participants in its "Claim Your Content" program, which gives the league the option of removing unauthorized NHL content uploaded to the site, or claiming that content as its own and sharing in ad revenue.

Will these efforts be enough to make advertisers comfortable and satisfy the demands of content owners? That remains to be seen.

Posted by Kevin Newcomb at 12:07 PM | Permalink | Comments (0)

November 13, 2006

Another One Nabbed by FTC

Looks like ERG Ventures is the last software distributor to find itself in the clutches of the FTC for distributing spyware via screensavers and such. The commission issued a permanent injunction against the company and one of its affiliates, requiring ERG pay up "ill-gotten" gains.

Posted by Kate Kaye at 6:01 PM | Permalink | Comments (0)

November 8, 2006

FTC Conference Coverage: Commission Investigating Net Neutrality

Though not a main focus of any panel at this week's FTC conference on "Protecting Consumers in the Next Tech-ade," the issue of net neutrality came up Monday and Tuesday, to little surprise. After discussing the FTC's recently-settled case against Zango, FTC Commissioner Jon Liebowitz Monday transitioned into net neutrality briefly, noting, "The net neutrality debate is so important."

The commission has initiated an investigation into the issue of net neutrality, and related topics of consumer protection, competition, transparency and disclosure. "If these companies are able to discriminate there's a danger their market power" could interfere with the growth of the Internet, he continued.

During a discussion later that day on user-generated content, Dr. Michael Geist, Canada research chair of Internet and e-commerce law at the University of Iowa, commented the net neutrality debate is "essential." Content created by everyday users could be in danger of being "relegated to the slow lane" if ISPs decide to block or slow access to certain types of content, he said.

Reiterating something Liebowitz mentioned the prior day, Gigi Sohn, president of Public Knowledge, questioned in regards to the issue, "Shouldn't consumers know the quality of the Internet service they're getting?"

A definite skeptic of the need for a net neutrality debate, Dan Brenner, SVP for law and regulatory policy for the National Cable and Telecom Association, argued, "There is an absence of specific problems we want to address," in regards to net neutrality. "Blocking [access to certain content], we know for major providers is off limits," he added. "Here the debate in Washington seems to swirl about things that haven't happened."

In an obvious jab aimed at Brenner, fellow panelist Jim Kohlenberger, executive director of the VON Coalition, commented a bit later, "At least where I grew up I don't wait for rain before I go out and fix the roof."

Ouch.

Well, this debate is sure to rage on, and it looks like if Liebowitz's comments are any indication, the FTC could get involved sometime down the road.

Posted by Kate Kaye at 1:19 PM | Permalink | Comments (0)

FTC Conference Coverage: Commission Investigating Net Neutrality

Though not a main focus of any panel at this week's FTC conference on "Protecting Consumers in the Next Tech-ade," the issue of net neutrality came up Monday and Tuesday, to little surprise. After discussing the FTC's recently-settled case against Zango, FTC Commissioner Jon Liebowitz Monday transitioned into net neutrality briefly, noting, "The net neutrality debate is so important."

The commission has initiated an investigation into the issue of net neutrality, and related topics of consumer protection, competition, transparency and disclosure. "If these companies are able to discriminate there's a danger their market power" could interfere with the growth of the Internet, he continued.

During a discussion later that day on user-generated content, Dr. Michael Geist, Canada research chair of Internet and e-commerce law at the University of Iowa, commented the net neutrality debate is "essential." Content created by everyday users could be in danger of being "relegated to the slow lane" if ISPs decide to block or slow access to certain types of content, he said.

Reiterating something Liebowitz mentioned the prior day, Gigi Sohn, president of Public Knowledge, questioned in regards to the issue, "Shouldn't consumers know the quality of the Internet service they're getting?"

A definite skeptic of the need for a net neutrality debate, Dan Brenner, SVP for law and regulatory policy for the National Cable and Telecom Association, argued, "There is an absence of specific problems we want to address," in regards to net neutrality. "Blocking [access to certain content], we know for major providers is off limits," he added. "Here the debate in Washington seems to swirl about things that haven't happened."

In an obvious jab aimed at Brenner, fellow panelist Jim Kohlenberger, executive director of the VON Coalition, commented a bit later, "At least where I grew up I don't wait for rain before I go out and fix the roof."

Ouch.

Well, this debate is sure to rage on, and it looks like if Liebowitz's comments are any indication, the FTC could get involved sometime down the road.

Posted by Kate Kaye at 1:19 PM | Permalink | Comments (0)

November 7, 2006

FTC Conference Coverage: EFF Attorney Questions Industry Self-Policing for Privacy

I caught Electronic Frontier Foundation Staff Attorney Marcia Hofmann just before the lunch break here at the FTC hearings on "Protecting Consumers in the Next Tech-ade."

"What did she think of the discussion thus far? Is it moving in the right direction towards determining if or how the commission should deal with the multitude of issues being raised?" I asked.

Though discussants are asking the right questions, she said, she wondered whether anything's really changed since the last similar FTC hearings on technology and the consumer, The Global Hearings, held in '95. Indeed, issues that were raised then (data mining, privacy concerns and child protection for instance) remain constant, she said.

Since the 1995 conference, "The solution has been the same," she said: to let the industry police itself. We need to determine whether we're handling the potential problems in the best way, she continued.

Posted by Kate Kaye at 3:59 PM | Permalink | Comments (0)

October 27, 2006

The Cookie Defense

Add one more reason not to delete cookies on your computer. A Texas man claims he was online when his wife, who had a restraining order, reported him lurking around her house, CNET has the report.

The man's defense was built around a CD containing the cookies and online records showing visits to the IRS Web site as well as those for Home Depot and Lowe's. Ultimately, the cookie defense didn't hold up because it was said that the cookies could have been altered by resetting the computer's clock to reproduce results. The case is being appealed, and possibly his lawyer will get records from the ISP or other sources to corroborate the evidence.

Posted by Enid Burns at 11:10 AM | Permalink | Comments (0)

September 13, 2006

Pay for AOL, Protect Your Identity

Curious story on AP today that hasn't gotten much pickup elsewhere.

AOL is offering free identity theft insurance to the few paying subscribers it has left. Policy holders are covered up to $10,000 to restore their good name and credit rating -- no matter how their personal information or finances were compromised.

Another value add is a separate policy to repair or replace computers that suffer physical damage, up to $1,000. (Yow - that's less than half of my MacBook Pro!)

There's also wiggle room for AOL built into all this: "The policies require no deductible, but are secondary to other coverage, meaning a user's homeowner's or renter's insurance pays first."

Posted by Rebecca Lieb at 1:33 PM | Permalink | Comments (0)

August 8, 2006

Can Subdomains Violate a Trademark?

A lawsuit that had the potential to define how far trademark infringement can go when applied to subdomains has been settled out of court. The lawsuit was filed by California non-profit religious organization Jews for Jesus against Google in response to a blogger who set up a blog critical of the group at jewsforjesus.blogspot.com.

According to attorney and Santa Clara University law professor Eric Goldman, the case could have set some precedent about third-level subdomains (like the "blog" part of http://blog.clickz.com). While trademark law has been shown to apply to a regular domain name, it has not yet been applied to third-level ones, and it's not clear that it would apply, he said. It would also help define Google's responsibility in what subdomains it allows to be registered.

The case was settled by Jews for Jesus and the blogger, who transferred the site over to them. Since the issues were never decided by a judge, the world will have to wait for the next lawsuit to find the answers to those questions.

Posted by Kevin Newcomb at 2:14 PM | Permalink | Comments (0)

June 29, 2006

The Spyware Is Getting Settled -- A Litigious List

The Center for Democracy and Technology has a thorough compendium of spyware lawsuits, both settled and pending. Here are some excerpts from the report and a quick list of that litigation below that. Note all the hefty fines, and yes, time in the slammer.

"[Since 2004]law enforcement officials have increasingly applied statutes - some long standing, some relatively new -- to spyware cases. Leading the charge has been the FTC, which to date has brought six cases under its unfair and deceptive practices authority. The Department of Justice has actively pursued spyware purveyors under the CFAA and the Wiretap Act, with 11 cases to date. And three attorneys general at the state level have filed spyware lawsuits under state fraud and consumer protection laws, with two more cases initiated under new state spyware statutes."

CDT encourages more states to join in by establishing consumer complaint sites about suspected spyware, establish or support computer forensic capabilities to investigate and verify spyware complaints, and train investigators and prosecutors to identify spyware attributes.

"Because spyware is a moving target, it requires attention from a multitude of sectors, from litigators to technologists and consumer advocates."

Cases:
1. FTC v. Seismic Entertainment Productions, Inc., SmartBot, Inc., and Sanford Wallace
Result: SmartBot and Wallace barred from spyware-related activity, pay $4 million, in settlement, Lansky and OptinTrade ordered to pay $227,000, barred from spyware-related activity

2. FTC v. MaxTheater Inc, Thomas Delanoy
Result: barred from spyware-related activity, pay $76K

3. FTC v. TrustSoft, Inc., Swanksoft and SpyKiller, Danilo Ladendorf
Result: barred from spyware-related activity, pay $1.9 million

4. In the matter of Advertising.com, Teknosurf.com, John Ferber
Result: must clearly and conspicuously disclose that privacy applications are adware

5. FTC v. Odysseus Marketing Inc. and Walter Rines
Status: Preliminary injunction barring from related spyware activity

6. FTC v. Enternet Media, Inc. Conspy and Co, Inc. Lida Rohbani, Nima Hakimi, Baback Hakimi and Nicholas C. Albert
Status: Temporary restraining order, litigation pending

7. State of New York v. Intermix Media, Inc.
Result: Settlement reached, defendant to pay $7.5 million, banned from adware distribution, Intermix founder to pay $750,000 in penalties, affiliate Azez Software to pay $35,000

8. State of Texas v. Sony BMG Music Entertainment
Status: Litigation pending

9. State of Washington v. Secure Computer LLC, Paul E. Burke, Gary T. Preston, Manoj Kumar, Zhigan Chen, Seth T. Traub
Defendant Chen to consult with attorney before advertising ANYTHING and must pay $84,000, Preston to pay $7,200, Traub to pay $2,000

10. State of New York v. Direct Revenue, LLC and Joshua Abram, Alan Murray, Daniel Kaufman, Rodney Hook
Status: Litigation pending

11. State of Washington v. Software Online.com and David W. Plummer
Result: Settled, defendants to pay $440,000

12. United States v. Jerome T. Heckenkamp
Result: Dismissed

13. United States v. Van T. Dinh
Result: sentenced to 13 months in prison, must pay nearly $50,000

14. United States v. Juju Jiang
Result: sentenced to 27 months in prison, must pay $201,620

15. United States v. Carlos Enrique Perez-Melara
Result: Warrant issued for arrest

16. United States v. John J. Gannitto
Result: Sentence to 3 years supervised probation with 30 days in halfway house, 5 years supervised probation, related defendant sentenced to 3 years unsupervised probation, both to pay $500

17. United States v. Cheryl Ann Young
Status: awaiting sentencing of defendant

United States v. Christopher Maxwell
18. Result: Defendant pleaded guilty to all charges, awaiting sentencing

19. United States v. Jeanson James Ancheta
Result: Defendant sentenced to 57 months in prison, to pay $15,000

20. United States v. Kenneth Kwak
Result: Defendant sentenced to 5 months in prison, 5 months subsequent house arrest and must pay $40,000

Posted by Kate Kaye at 3:55 PM | Permalink | Comments (0)

June 15, 2006

Net Neutrality Event Tomorrow

If you're in D.C. tomorrow, you may want to stop by an event held by The Institute for Politics, Democracy & the Internet (a.k.a. IPDI) called "Net Neutrality: What's at Stake - for the Internet, Politics and Consumers." Mike McCurry, co-chair of Hands off the Internet and Amazon VP for Global Public Policy Paul Misener are among those set to speak.

Posted by Kate Kaye at 10:26 AM | Permalink | Comments (0)

June 9, 2006

Craig Newmark on Net Neutrality

Craig Newmark just made an earnest and quite impassioned plea for net neutrality at the Innovative Marketing Conference.

"The Internet neutrality issue is a big one right now," said Craigslist's founder, looking rather beleaguered. "It looks like Congress might give your compitors the right to put your sites at a great disadvange.

"This is a period like what the early bloggers went through; Martin Luther, Thomas Paine, John Locke."

Posted by Rebecca Lieb at 11:13 AM | Permalink | Comments (0)

June 7, 2006

House to Talk Net Neutrality Today

Well, the House is supposed to move on one of the many net-neutrality-related telecom bills today. An amendment from Massachusetts Democrat Ed Markey prohibiting broadband providers from offering a two-tier system was meant to be among the topics of discussion during The House Rules Committee meeting at 3:30.

They may be discussing the Web's fate as we speak. Remember: these are the same guys who still respond to constituents using snail mail.

Whether or not they actually talk net neutrality, at least we can take solace in the fact that Members voted today to commemorate the 60th anniversary of the ascension to the throne of His Majesty King Bhumibol Adulyadej of Thailand.

Posted by Kate Kaye at 4:49 PM | Permalink | Comments (0)

May 26, 2006

House Supports Net Neutrality

The Judiciary Committee gave the nod to net neutrality yesterday in their 20 to 13 passage of the Internet Freedom and Nondiscrimination Act. According to a Red Herring report, "The legislation does not block phone companies from charging consumers more for better access to the Internet, but it bans the service providers from charging Internet application firms such as Google a toll for the traffic they generate."

Posted by Kate Kaye at 12:33 PM | Permalink | Comments (0)

May 12, 2006

Congress Moves to Force Social Networks to Block Access by Kids

Congressman Michael Fitzpatrick (R - Penn), decided to start his first term as a U.S. Representative with a bang this week by introducing the "Deleting Online Predators Act of 2006." Would that be the "DOP Act?" The acronym I'm thinking of would need an "E," and possibly a "Y" at the end to adequately describe this misguided attempt to protect kids from themselves by restricting their access to social networking sites.

The bill, H.R. 5319, would require those sites to make it difficult for children to access the site, and require schools and libraries to block access to any site described as a social network. It would also require the FTC to publish a list of offending sites that "have been shown to allow sexual predators easy access to personal information of, and contact with, children."

A big problem with the plan is the broad language the bill uses to describe its target, including any site that "allows users to create Web pages or profiles that provide information about themselves and are available to other users; and offers a mechanism for communication with other users, such as a forum, chat room, e-mail, or instant messenger."

"Sites like Myspace and Facebook have opened the door to a new online community of social networks between friends, students and colleagues," Fitzpatrick said on his Web site. "However, this new technology has become a feeding ground for child predators that use these sites as just another way to do our children harm."

The bill would also require the FTC to create a Web site that would serve as a resource for parents and teachers to learn about the potential dangers of internet child predators, and ways they can use the information children provide on social networking sites in nefarious ways. Since the FTC has an existing page that includes social networking in its tips for parents when discussing Internet use with their kids, there's no need to pass a law to make that happen.

Should kids be educated about not putting too much personal information in a public profile? Yes, of course. Should there be a law passing that responsibility on to schools, libraries, and the site owners instead of parents? No way.

The bill is currently being considered by the House Energy and Commerce Committee. Let's hope someone there is willing to oppose this grandstanding and realize that legislating technology to prevent its misuse is never a good idea.

Posted by Kevin Newcomb at 1:44 PM | Permalink | Comments (0)

May 4, 2006

Spyware Perpetrators Get Slapped with Fines

A couple of spyware perpetrators got slapped with some hefty fines today. In a case brought by The Federal Trade Commission, a New Hampshire federal district court ordered 1990s spammer Sanford Wallace and his Smartbot.Net firm to pay over $4 million for installing illegal spyware on people's computers.

Jared Lansky and Ad brokerage OptinTrade got hit with a $227,000 fine. According to an InternetNews.com report, both are now banned from uploading any software to a user's computer without the user's consent.

The FTC is also charging Odysseus Marketing and its principal Walter Rines with capturing, compiling and attempting to sell user data, and uploading software onto users' computers that reformatted search engine results to place his ad clients at the top.

Posted by Kate Kaye at 4:29 PM | Permalink | Comments (0)

May 2, 2006

Net Neutrality Issue Dissed by Senate Hulkster

The Senate's resident hulkster has unleashed a new telecom bill, but evidently Ted Stevens's proposal doesn't touch on the net neutrality issue that's got so many Internet activists and big-name Web companies abuzz.

According to yesterday's CNET story, if enacted, the Communications, Consumer's Choice, and Broadband Deployment Act from Alaska Republican and chairman of the Senate Commerce Committee Ted Stevens could please the recording industry by allowing the FCC to outlaw device makers from enabling recording of digital over-the-air radio.

It could also bolster tax dollars collected for the Universal Service Fund, "a controversy-plagued, multibillion-dollar pool of money that's currently used to subsidize telecommunications services in rural and other high-cost areas, schools and libraries."

However, the bill doesn't do much to help proponents of net neutrality. It would only require that the FCC prepare annual reports on any net neutrality-related problems.

Posted by Kate Kaye at 11:50 AM | Permalink | Comments (0)

April 27, 2006

Net Neutrality Amendment Dies but Issue Won't

Despite activist and Web industry outcries to protect Net neutrality, the House Energy and Commerce Committee yesterday voted down a Democratic-backed Net neutrality amendment by a 34-22 vote. However, according to a CNET News story, "The final version of the telecommunications bill does include some Net neutrality regulations, including charging the FCC with investigating any 'violation' of fair treatment principles. In a case last year dealing with Vonage, the FCC already took action against a broadband provider accused of interfering with Internet phone calls."

Evidently, some believe Massachusetts Democrat Ed Markey's amendment didn't go far enough to prevent the potential two-tier system by which ISPs could charge fees for delivery of certain broadband content. Not surprising, lots of Web publishers have gotten their dander up over this one. A letter sent to Energy and Commerce committee chairmen March 1 by an array of Web firms stated, "While it is appropriate for Congress to develop new legislation to promote competition among broadband networks, it must also ensure that consumers and providers continue to have the right to use those networks to send and receive content, and to use applications and services, without interference by network operators." Signatories included behemoths like Amazon, Microsoft, Google, Yahoo and Ebay, as well as littler guys like Match.com, Travelocity, Evite and IWon ('member them? I never won....)

Evidently, according to the CNET story, "a pair of U.S. senators is circulating a draft bill that adopts stiff Net neutrality regulations. It's backed by Olympia Snowe, a Maine Republican, and Byron Dorgan, a North Dakota Democrat, and takes largely the same approach as the Markey amendment."

Interesting to note, the Save the Internet Coalition is heartened by yesterday's vote. Here's how they see it, according to their blog: "Ok, so the vote on the Markey amendment to protect the internet has happened, and it was voted down, 34-22. That is a big deal. It’s too bad we lost the vote, but we expected that loss. What we did not expected was the narrow margin. By way of comparison, the subcommittee vote was 23-8, which means we should have gotten blown out of the water."

Like pretty much every other legislative issue, this one ain't gonna die anytime soon. There are way too many powerful players lobbying on both sides of it.

Posted by Kate Kaye at 11:05 AM | Permalink | Comments (0)

April 26, 2006

OLGA's Coming Out Party

The Online Lead Generation Association threw a coming out party of sorts at Ad:Tech tonight. Formed last November, the new trade organization hopes to set ethical standards in lead-gen before others (such as legislators and attorneys general) take the lead on that particular initiative (think "Free iPod!" ads).

Chairman Daniel Felter, CEO of Opt-Intelligence, said the nascent organization already boasts close to 50 members. Immediate goals are to become actively involved in policy-making as well as to create a series of educational events for marketers on ethical lead-generation practices.

Posted by Rebecca Lieb at 11:41 PM | Permalink | Comments (0)

April 21, 2006

MoveOn.org's "Save the Internet Petition"

Advocacy group MoveOn.org has taken an interesting approach in the petition they're circulating today to encourage Americans to support Net neutrality.

This isn't the usual just-sign-you-name petition. Rather, MoveOn is encouraging signatories to really tell their congressional reps just what it is they do online. There's an extensive menu ranging from "I use an iPod" to specifying just what kind of tickets you purchase online (movies, shows, events) if you're an online ticket buyer. They even ask you to specify what OS you use to access the Web.

Nice approach to illustrate to Congress the depth to which the Web has penetrated voters' lives.

Posted by Rebecca Lieb at 10:47 AM | Permalink | Comments (0)

April 11, 2006

Canada's Working to Do the Right Thing

Canada's Competition Bureau is in the midst of their annual retreat in Quebec. Once a year, the government agency takes some time to examine the issues theyll be facing in the coming months.

I was honored to be asked to participate on a panel discussing not the current, but the upcoming legal issues in interactive marketing and advertising. The moderator was Joan Huzar, a founding member and current head of the Consumers Council of Canada. Also participating were marketing Professor Tim Richardson; Jonathan Curtis of Bell Canada and the Messaging Anti-Abuse Working Group (MAAWG); and attorney Beryl Green of Miller Thompson LLP.

So from the varying perspectives of consumers, the industry, security and education experts, the Competition Bureau was briefed on such issues as spam, click fraud, CGM, trademark protection, word-of-mouth and potential issues in mobile/wireless abuse.

As Canada nears legislation on do-not-call and spam, my hat's off to the Competition Bureau for looking just a bit over the horizon and preparing for the inevitable next set of problems, issues and policies.

Posted by Rebecca Lieb at 1:32 PM | Permalink | Comments (0)

March 23, 2006

FCC High Commish OK with Net Neutrality…Or Not

"Any provider who blocks access to the Internet is inviting customers to find another provider….It's bad business." That, according to Networking Pipeline, is what AT&T CEO Ed Whitacre told an audience at the TelecomNext show on Tuesday. Added NP, "He then emphatically stated that AT&T would not block independent services, 'nor will we degrade [Internet access]. Period, end of story.'"

So far, so good. Enter Federal Communications Commission Chairman Kevin Martin. Talk about flip-flopping. As noted in the report, he said he believes the FCC has the necessary authority to enforce network neutrality violations. Then again, he also said that he "supports network operators' desires to offer different levels of broadband service at different speeds, and at different pricing." He added that if you don't pay for better service, you ought not expect to get it.

I'm no telecom/pipeline expert, so I simply don't get the nuances here. The truth is, though, I'm no different from most consumers in this way. When this stuff finally starts to play out in our broadband bills, nuances like Martin is making won't mean diddly-squat.

Posted by Kate Kaye at 1:48 PM | Permalink | Comments (0)

March 17, 2006

Judge Tells DoJ No on Google Search Queries

Just posted on Google's blog by Associate General Councel Nicole Wong:

Google will not have to hand over any user's search queries to the government. That's what a federal judge ruled today when he decided to drastically limit a subpoena issued to Google by the Department of Justice.

"The fact that the judge sent a clear message about privacy is reassuring," writes Wong, "What his ruling means is that neither the government nor anyone else has carte blanche when demanding data from Internet companies."

Bravo!

Posted by Rebecca Lieb at 9:51 PM | Permalink | Comments (0)

Google Amps Up Lobbying Efforts

Our sister site SearchEngineWatch reports Google has hired lobbying firm PodestaMattoon.

Small wonder. Back in October, the search giant took the initial plunge when it brought Alan Davidson on board to be its eyes, ears and voice in D.C. In retrospect, it seems policy issues were only just getting underway a few short months ago.

Now there's a whole laundry list of issues affecting Google (and plenty of other online players): China, the DOJ ordering Google to fork over user data, net neutrality under threat -- the list goes on and on.

Industry organizations such as the IAB and the OPA don't yet have anywhere near the influence on Capitol Hill of, say, a DMA, the cable industry or telcos. Whilst waiting for that level of industry maturity, it's nice to know Google can reach deep into its well-lined pockets and hopefully convince policymakers to be just a little less evil.

Posted by Rebecca Lieb at 10:41 AM | Permalink | Comments (0)

March 3, 2006

Patent Woes Affect Flash Ads

The long-running patent suit between Microsoft and a small company called Eolas has finally seen a real-world result, one which could effect many online marketers.

Beginning this week, Microsoft began shipping an update for Internet Explorer 6 on Windows XP and Windows Server 2003 that prevents plugins like Flash, Real Media and Java from playing automatically.

Those users will now have to click one more time to initiate these ActiveX controls, barring some workarounds by a site's developers.

Will this cause the end of Flash ads, or is it just a matter of consumers getting used to a new behavior?

Posted by Kevin Newcomb at 5:21 PM | Permalink | Comments (0)

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