New Notice Requirement in California Re Do Not Track

In California, the Online Privacy Protection Act, requires a Web site or online service that collects Personally Identifiable Information (“PII”) about California residents to, among other things, state in its privacy policy, not only the types of PII that are collected but also the categories of third parties with whom such PII is shared.

A new amendment, AB 370, was signed into law by Governor Jerry Brown and takes effect on January 1, 2014.  The new law requires that all such Web sites or online services must disclose how they respond to “do not track” features or other mechanisms on Web browsers that provide consumers the ability to exercise choice regarding the collection of PII about an individual consumer’s online activities.

Compliance with this disclosure requirement may be achieved by “providing a clear and conspicuous hyperlink” contained in the privacy policy that links to a description “of any protocol the operator follows that offers the consumer” the choice to opt-out of internet tracking. 

As always, a fundamental consideration is: What is the consequence for non-compliance? Here, it seems the answer is "not much". My sources tell me the privacy advocates feel shafted on this one, getting "only" a notice requirement out of the state legislature and violators receiving a 30 day "cure" period following receipt of notice of non-compliance.

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB370

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Big Data and the Law

The mass media is now discovering that the ubiquity of "Big Data" is now impacting how lawyers assess cases. Lex Machina, founded by Stanford Law Professor, Mark Lemley, has assembled a wide database of litigation outcomes which purports to provide some directional and even predictive attributes to attorneys (and clients) assessing case values.

Given the availability of similar analytics (predictive pricing) in other verticals (for example, IRI in the retail grocery space and Power Information Network for retail automotive, services offered by the likes of Lex Machina are long overdue in the legal industry which have instead long relied on "horse sense" and "gut instinct".

http://blogs.wsj.com/law/2013/09/24/should-lawyers-fear-big-data-or-embrace-it/

See, as well, Michigan State University, Professor Daniel Katz's formulation of General Counsel's as "Supply Chain Managers".

http://reinventlaw.com/main.html

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Court Shuts Down Massive Sweepstakes Scam

The defendants sent more than 3.7 million letters during the past two years telling "winners" all they had to do was send in $20, $50, whatever, to collect their $1 million or more in winnings.   The scammers allegedly sent out nearly 800,000 letters to people in 156 countries in the first half of 2013. They have collected more than $11 million from consumers since 2009.  The vast majority of the victims of this scam appear to be over 65.

http://www.ftc.gov/opa/2013/09/universal.shtm

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HIPAA Omnibus Compliance Rule Takes Effect Today

In particular, some important new requirements for Business Associates (and those that are subcontractors to Business Associates). See a good bullet point summary from Hunton Privacy Blog.

http://www.huntonprivacyblog.com/2013/09/articles/hipaa-omnibus-rule-compliance-deadline-has-arrived/

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SEC Issues New Proposed Regs on Pay Disclosure Ratio

The Securities and Exchange Commission today voted 3-2 to propose a new rule that would require public companies to disclose the ratio of the compensation of its chief executive officer (CEO) to the median compensation of its employees. 

The new rule, required under the Dodd-Frank Act, would not prescribe a specific methodology for companies to use in calculating a “pay ratio.”  Instead, companies would have the flexibility to determine the median annual total compensation of its employees in a way that best suits its particular circumstances.

The worry, however, is that it may be hard to draw inferences or comparisons across industries or even among competitors. There are also opportunities to distort the numbers by firms hiring more highly paid employees and outsourcing to contractors lower-paid, lower skilled activities. I see lots of work on the horizon for lawyers, regulators, HR/comp consultants and others. 

Ah, the magic of unintended consequences!

http://www.sec.gov/News/PressRelease/Detail/PressRelease/1370539817895#.Uj-KtM1znbA

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Google Considers Abandoning Cookies

It has been reported (initially in USA Today) that Google is considering abandoning cookies for AD-ID, a system which might be sold as something more appealing to advertisers, market researchers and consumers alike. Already of course,  Microsoft has made "do not track" the default setting for Internet Explorer. Apple Safari already blocks third party cookies as will new versions of Firefox.

Hard to tell if this is a "if you can't beat them, join them" situation or something much deeper/more nuanced. Somehow though, if I were forced to beat, I know where I would put my money.

http://www.businessinsider.com/google-may-ditch-cookies-for-adid-2013-9

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Pew Poll Regarding Online Anonymity: The Findings Stink

A new survey finds that most internet users would like to be anonymous online, but many think it is not possible to be completely anonymous online. See details contained in link below.

http://pewinternet.org/Reports/2013/Anonymity-online.aspx

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Bill, Baby, Bill: Lawyer Bills 29 Hours In a Day

Above the Law reports on a court-appointed attorney who billed 29 hours in a day. Now, like me, I know that most lawyers entered the profession because they are mathematically challenged. That may be the case here. And I think this is where he is probably going with the "sloppy book-keeping" argument, anyway.

Here is another thought: What about travel across time-zones? That is a great way to rack up hours in excess of 24 per day.

All of this of course tarnishes our collective legal reputations. Absurd outcomes like this act as a sort of tragicomic reference point for all that is wrong with the legal profession.

http://abovethelaw.com/2013/09/lawyer-billed-29-hour-day-to-the-same-client-and-didnt-expect-to-get-caught/

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