Mobile Device Privacy Inquiry Comment Deadlines Set by FCC

By J. Bradford Currier and Marc Martin

Interested stakeholders may now file comments on the Public Notice recently released by the Federal Communications Commission relating to safeguarding Customer Proprietary Network Information on mobile devices. As we reported previously, the Public Notice seeks information on a number of privacy issues, including the types of customer information collected by wireless service providers, the steps that should be taken by wireless service providers to secure such data, and the scope of wireless service providers’ obligations relative to the device manufacturer or software developer.

The Federal Register notice states that comments on the Public Notice must be filed by July 13, 2012, and reply comments must be filed by July 30, 2012.

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FCC Seeks Comment on Mobile Phone Privacy Protections

By J. Bradford Currier and Marc Martin

The Federal Communications Commission recently released a Public Notice seeking comment on, among other things, how mobile wireless service providers safeguard customer information stored on user devices. The Public Notice was accompanied by an FCC Staff Report, discussing the privacy issues presented by location-based mobile applications, which collect and transmit information about a user’s physical location to the service provider in order to provide real-time services. The Public Notice requests comment on the types of customer information collected by wireless service providers, the steps that should be taken by wireless service providers to secure such data, and the scope of wireless service providers’ obligations relative to the device manufacturer or software developer, as set forth below.

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Myspace and FTC Agree to Privacy Consent Order

By J. Bradford Currier

Social networking site Myspace has agreed to a proposed consent order with the Federal Trade Commission which provides for independent privacy audits for 20 years. The FTC alleged that Myspace made their users’ unique identifiers, known as “Friend IDs,” available to advertisers despite its privacy policy promising that the company would not share users’ personally identifiable information without first giving notice to users and receiving their consent. 

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Supreme Court Permits TCPA Lawsuits in Federal Court

By David A. Tallman 

The Supreme Court has conclusively determined that private plaintiffs may bring Telephone Consumer Protection Act (TCPA) claims in federal court, resolving a conflict among the federal circuit courts of appeal. On January 18, 2012, in Mims v. Arrow Financial Services, the Court held that both federal and state courts have jurisdiction to hear private rights of action under the TCPA.

The TCPA and its implementing regulations place various restrictions on automated telephone calls and telemarketing calls, including limitations on calls to wireless numbers using an automated telephone dialing system or an artificial or prerecorded voice, placing artificial or prerecorded messages to residential telephone numbers, sending unsolicited faxes, using an automated dialing system to engage multiple business lines simultaneously, and making telemarketing calls to telephone numbers on national or company-specific Do-Not-Call lists. The TCPA permits individuals and state authorities to bring private rights of action to recover actual and statutory damages and also authorizes administrative enforcement by the FCC.

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FTC Settles First Privacy Case Involving a Mobile Application

By Samuel Castic

The FTC announced a consent decree and order on Monday settling the civil action that was commenced against W3 Innovations, LLC, and Justin Maples—the entity and person respectively behind the Broken Thumbs Apps brand—for alleged violations of the Children’s Online Privacy Protection Act (“COPPA”). Broken Thumbs Apps developed Apple Store Apps including Emily’s Girl World, Emily’s Dress Up, Emily’s Dress Up & Shop, and Emily’s Runway High Fashion, which were collectively reported to have more than 50,000 downloads. The FTC announcement indicated that this is the FTC’s first case involving mobile applications, or “apps.”

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Apple Investigated by European Privacy Authorities for Tracking Bug

By Dr. Sascha Pres and Dr. Tobias Bosch

Government authorities in France, Italy and Germany are scrutinizing Apple after a report indicated that Apple iPhone and iPad devices are tracking and storing geolocation information and data regarding the time of visits of end users. The devices gathered the information through the use of Wi-Fi hotspots and cell towers around the end users' current location and then generated an unencrypted file named "consolidated.db" that contained all the information on the device.

In reaction to this report, Apple released a Q&A addressing these issues. According to the Q&A, geolocation data from Wi-Fi hotspots and cell towers was collected due to a bug in its operating software iOS 4. Apple fixed the tracking bug through the latest iOS 4.3.3 update released on May 4, 2011. The update reduces the size of the location database cache and will now store end users’ location data for approximately a week instead of the year's worth of data stored prior to the update. The location database will no longer be stored on iTunes and the database will be fully deleted when the end user turns off the device's location services. 

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No Group Hugs: The Supreme Court Says "Yes" to Class Action Arbitration Waivers

By Andrew Glass and Robert Sparkes III

The Supreme Court’s ruling in AT&T Mobility LLC v. Concepcion continues the Court’s string of arbitration decisions bringing greater clarity to what has been a cloudy subject.  In this decision, the Court addresses the question of whether businesses can enforce class action waivers in their consumer arbitration agreements, answering unequivocally “yes.” Indeed, the decision is an important victory for businesses, and is likely to help businesses avoid the costs of what are more often than not meritless class lawsuits. 

The Concepcion decision finds its roots in the Court’s recent decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corporation. There, the Court established the principle that parties cannot be forced to submit to class-wide arbitration unless they have actually agreed to do so. In Stolt-Nielsen the Court did not have the occasion to address whether parties can expressly waive arbitration on a class-wide basis. Now, applying Stolt-Nielsen to express class action arbitration waivers, Concepcion finds the Federal Arbitration Act (FAA) invalidates state law aimed at barring such waivers. State law is preempted by the FAA where it presents “an obstacle” to accomplishing Congress’s objective of promoting the efficiency of arbitration.            

The telecommunications, consumer credit and finance, and sales industries, as well as other businesses that offer consumer services, are likely to benefit from the lower costs of individual arbitration. AT&T contends that consumers will also benefit from the streamlined procedures offered by arbitration.

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Senators McCain and Kerry Introduce Privacy Bill of Rights

On April 12, 2011, Senator John Kerry (D-MA) and Senator John McCain (R-AZ) introduced the “Commercial Privacy Bill of Rights Act of 2011” to establish the first federal statutory baseline of consumer privacy protection that would apply across industry sectors. The bill would govern how customer information is used, stored, and distributed online. We will provide more analysis soon, but for now, here are the highlights:

Information covered. The bill applies to broad categories of information, including names, addresses, phone numbers, e-mail addresses, other unique identifiers, and biometric data when any of those categories are combined with a date of birth, place of birth, birth certificate number, location data, unique identifier information (that does not, alone, identify an individual), information about an individual’s use of voice services, or any other information that could be used to identify the individual.

Right to security and accountability. Information-collecting entities would be required to implement security measures to protect user information and would be prohibited from collecting more individual information than is necessary “to enforce a transaction or deliver a service requested by that individual,” subject to certain exceptions.

Privacy by design. Entities would be required to implement privacy by design concepts, which would require entities to incorporate privacy protection into each stage of product or service development in a manner that is much more comprehensive than previously required anywhere in the United States.

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U.S. Justice Department Raises Concerns Regarding Proposal to Limit Federal Government's Access to 'Cloud' Data

By Oded Green

On April 6, 2011, the Senate Judiciary Committee held a hearing regarding a proposed update to the Electronic Communications Privacy Act (ECPA) in light of cloud computing and other technological developments that have occurred since the statute was enacted more than two decades ago. The ECPA is comprised of three laws -- the Wiretap Act, the Stored Communications Act, and the Pen Register Act -- which govern when certain parties, including law enforcement and other governmental authorities, may access communications and related data and to whom they may disclose those communications and data.

According to Senate Judiciary Committee Chairman, Patrick Leahy, with the explosion of cloud computing, social networking sites and other new technologies, determining how to bring ECPA into the digital age is one of Congress’ greatest challenges. He added that ECPA is “hampered by conflicting standards that cause confusion for law enforcement, businesses and consumers." For example, the content of a single e-mail could be subject to as many as four different levels of privacy protections under ECPA, depending on where it is stored, and when it is sent.

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Retransmission Consent Examined in Heated, Live Webcast Debate Among Broadcast, Cable, Programming, and Consumer Interests

A live webcast last week carried on Internet TV channel Broadband US TV examined all sides of the debate on whether rules governing the grant of retransmission consent by local broadcast stations to cable operators, DBS providers, and other multichannel video programming distributors (MVPDs), should be reformed.

Retransmission consent negotiations have become quite contentious in recent years, at times resulting in the temporary blackout of a local broadcast station in the face of an impasse between the MVPD and broadcaster.

The lively and, at times, raucous debate featured Toni Cook Bush of Skadden, Arps and John Hane of Pillsbury Winthrop Shaw Pittman for broadcasters, Ross Lieberman of the American Cable Association and Cristina Pauze of Time Warner Cable for cable operators, Gigi Sohn of Public Knowledge for consumer interests, and Richard Waysdorf, of Starz Entertainment for independent programmers. The program was moderated by Broadband US TV co-hosts Marty Stern of K&L Gates and Jim Baller of the Baller Herbst Law Group.

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House Votes to Overturn FCC's Net Neutrality Order

In a setback to one of the FCC’s key policy proposals, the House of Representative today voted in favor of a Resolution of Disapproval under the Congressional Review Act aimed at invalidating the Commission’s Net Neutrality Order adopted late last year. The vote follows months of heated industry and Congressional debate, including sharply partisan debate  about the Resolution’s merits, court challenges brought by wireless carriers, and procedural delays in bringing the Resolution to the House floor. While the Resolution seeks to overturn the FCC’s new anti-blocking, network management transparency, and traffic discrimination rules, it faces an uphill battle to become law. The Resolution would need to get passed by the Democrat-controlled Senate and get signed by the President. The White House recently said it plans to veto any measure overturning the FCC's Net Neutrality Order.

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FTC Continues to Flex Its Enforcement Muscle With Regard to Social Media Promotional Activity

by Ann M. Begley, Lawrence C. Lanpher and Carolina M. Heavner

The Federal Trade Commission’s (“FTC”) recent action against a company and its owner in connection with the allegedly deceptive promotion of music teaching tools signals FTC’s continued intention to keep social media promotional activity as an enforcement priority. In its third public investigation and second enforcement action since issuing its revised Guides Concerning the Use of Endorsements and Testimonials in Advertising[1] (hereafter, FTC Endorsement/Testimonial Guides) in December 2009, FTC continues to expand advertisers’ responsibility to monitor third party interactive media communications containing endorsements of advertisers’ products.

In finding the advertiser and its owner, an individual, responsible for assuring that endorsers adequately disclose any material connections with the advertiser, FTC states that an advertiser agreement that requires endorsers to comply with FTC guidelines and disclosures is insufficient in the absence of an advertiser monitoring program that ensures clear and prominent disclosure of the relationship with the advertiser.[2]

Thus, in addition to a $250,000 penalty against the company and its owner, FTC has required a far-reaching monitoring program – a potentially expensive and burdensome commitment for the future.

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FCC Adopts New Data Roaming Rules to Promote Mobile Broadband

by Brendon P. Fowler

On April 7, 2011, the FCC voted 3-2 to require mobile broadband operators to offer data roaming arrangements to other providers. Such arrangements allow consumers with mobile data plans to remain connected by utilizing another network while roaming outside their own provider’s network coverage. Conceptually, the data roaming rules are related to those already established for voice roaming, and Chairman Genachowski tied the Commission’s present action to its prior efforts to develop "automatic" voice roaming and nationwide voice services. Analysts believe that the decision will benefit companies like Sprint Nextel Corporation and MetroPCS Communications Inc. at the expense of AT&T and Verizon Wireless by allowing smaller competitors onto the networks owned by larger rivals, and by enabling smaller carriers to offer more broadband services.

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Court Dismisses Appeal Against FCC's Net Neutrality Rules

Today the FCC prevailed in the continuing skirmish over Net Neutrality in Washington. The U.S. Court of Appeals for the District of Columbia dismissed the lawsuits filed last January by Verizon and Metro PCS seeking to overturn the FCC’s Net Neutrality order adopted in December. The court found that the two wireless carriers filed their challenges too early and should have waited until the Net Neutrality order was published in the Federal Register. Both wireless carriers have indicated they will re-file their appeals.

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Doing Business in Mexico? It's Time to Revise Your Privacy Practices

By Holly K. Towle, Henry L. Judy, Samuel R. Castic

On July 6, 2010, Mexico’s “Law on the Protection of Personal Data Held by Private Parties” took effect, and some of the most stringent requirements are currently scheduled to take effect in July 2011.  Accordingly, the time for companies that are covered by the law to adjust their privacy policies and business practices is today, not mañana.[1]   In many ways, this law is more robust than approaches taken to data protection in the United States.  It brings Mexican privacy law far closer to, or goes beyond, the concepts and structure of the European Data Protection Directive (“EU Directive”)[2] or other approaches such as the Canadian Personal Information Protection and Electronic Documents Act.[3]   The law also seems to approximate the European Union approach of treating data protection as a basic right.[4]   This Alert discusses some of the key provisions of Mexico’s new law.

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Will Broadcasters Have Incentive to Contribute Spectrum for Wireless Broadband?

By Marc S. Martin and Martin L. Stern

With demand for wireless Internet access predicted to increase exponentially over the next few years, the debate over the FCC’s proposal to free up large amounts of broadcast spectrum through “incentive” auctions pits television broadcasters against other industry sectors and the Administration in a heated regulatory and legislative battle over the future of broadcast television and mobile broadband.

Under the National Broadband Plan, the FCC set a goal of redeploying 500 MHz of spectrum for mobile broadband use by 2020, recommending that 120 MHz come from the broadcast television bands. The Commission’s National Broadband staff set their sights on television broadcasters after concluding that much of the 6 MHz currently allocated to television stations remains underutilized following completion of the digital transmission transition in  2009, with only 15% percent of U.S. households reliant on over-the-air transmission for their reception of television programming. Additionally, estimates place the value of wireless spectrum at $1.28 per MHz per person, compared to 11 to 15 cents per MHz for television spectrum. In response to this value gap, FCC officials propose that television broadcasters participate in voluntary auctions of some or all of their spectrum, with broadcasters receiving a portion of the proceeds as an incentive to vacate their spectrum. The thought is that some broadcasters may welcome the prospect of trading in their spectrum for cash. As part of this proposal, the FCC would also oversee the “repacking” of the spectrum, moving broadcasters (potentially including those who chose not to give up their spectrum) to fewer adjacent channels and potentially placing two or more broadcasters on a single 6 MHz channel. The theory is that the repacking process would free-up significant swaths of broadcast spectrum for wireless broadband use by the winning bidders. The Obama Administration hopes the auction and reallocation processes will mark the first step towards fulfilling the President’s recent pledge to extend high-speed wireless access to 98% of Americans, while putting billions in auction revenue in the public coffers.

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High Court to AT&T: Don't Take It Personally, But You Have No "Personal Privacy"

By Bruce Nielson.

The U.S. Supreme Court recently held that AT&T and other corporations do not have “personal privacy” for purposes of an exemption from the information disclosure requirements of the Freedom of Information Act (“FOIA”). In its unanimous opinion in FCC v. AT&T Inc., the court rejected “the argument that because ‘person’ is defined for purposes of FOIA to include a corporation, the phrase ‘personal privacy’ in [FOIA] Exemption 7(C) reaches corporations.” The court held: “The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations.”

The AT&T case arose in connection with an FCC investigation into whether AT&T overcharged the government for services rendered in connection with an FCC-administered program designed to enhance access to information and telecommunications services by schools and libraries. During the investigation, AT&T provided documents to the FCC that included information about employees involved in the program and invoices and emails with pricing and billing information. The FCC and AT&T resolved the matter in 2004.

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States Support Additional Federal Consumer Information Privacy Protections

By Bruce Nielson and Samuel Castic

Fifteen state attorneys general recently sent a letter to the FTC supporting its recent proposal for a federal regulatory framework to protect the privacy and security of consumer information. The letter also recommends additional consumer information privacy and security protections that go beyond the FTC’s proposal. The FTC’s proposal, in the form of a preliminary FTC Staff Report entitled “Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers” (the “Report”) was released on December 1, 2010 and is described in more detail in a prior blog entry.

The 15 state attorneys general – from Arizona, Illinois, Indiana, Iowa, Massachusetts, Montana, Nevada, New Mexico, New York, North Dakota, Rhode Island, Tennessee, Vermont, Virginia and Washington (the “States”) – make the following points in their February 18, 2011 letter to the FTC:

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The FCC's Net Neutrality Order: Substance and Status for Mobile Wireless Broadband

On December 21, 2010, a divided Federal Communications Commission adopted its long-awaited, but highly controversial, Preserving the Open Internet order (“Order”), which requires broadband service providers to treat all web traffic equally and protect open access to the Internet for web consumers and other stakeholders. While Congressional and industry opposition continues to ferment, a closer look at the Order reveals that mobile wireless broadband providers will retain considerable flexibility in how they manage their networks when compared to their fixed provider counterparts. 

The Order focused on three primary goals underpinning the Commission’s net neutrality policy: 1) transparency 2) no blocking and 3) no unreasonable discrimination. For “transparency,” both fixed and mobile providers must publicly disclose the network management practices, performance, and commercial terms of their broadband services. By contrast, the application of the “no blocking” condition differs depending on the type of provider. Fixed providers are subject to a broad obligation to not block lawful content, applications, services, or non-harmful devices. Mobile wireless providers are subject to a narrower obligation to not block lawful websites and applications that compete with the provider’s voice or video telephony services. Most importantly, the Order’s “no unreasonable discrimination” provision applies solely to fixed providers, leaving mobile operators free to favor or disfavor certain types of network traffic. According to the Commission, these new rules for mobile wireless providers will not harm customers because most consumers have more choices for mobile wireless service than for fixed broadband. The Commission also noted favorably the mobile industry’s recent moves towards openness, including the introduction of open operating systems like Android. As a result, when the rules finally go into effect, mobile wireless broadband providers will be exempt from the obligation to manage network traffic in a nondiscriminatory manner.

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K&L Gates Global Government Solutions Report Includes Articles on Key TMT, Privacy and Patent Developments

K&L Gates recently published its Global Government Solutions 2011 Annual Outlook, which contains articles from around the firm on key governmental developments expected in 2011.

The Annual Outlook includes an article addressing developments affecting the Telecom, Media and Technology sector in 2011 by DC partners Marc Martin and Marty Stern, noting that the TMT sector enters 2011 with significant regulatory uncertainty and the FCC facing an uphill battle on many signature regulatory initiatives.

The article reviews the FCC’s net neutrality order and the challenges it faces in court and on Capitol Hill, discusses the recent FCC and Department of Justice approvals of the Comcast/NBCU transaction, and a number of additional issues getting significant focus in 2011. These include retransmission consent battles between broadcasters and cable/DBS providers and the FCC’s expected rulemaking proceeding on this issue, the Commission’s implementation of new communications accessibility requirements under the new 21st Century Communications and Video Accessibility Act, and continued efforts to reform the Universal Service Fund and make it broadband-centric.

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Wittow authors new article on Cloud Computing

 Seattle partner Mark Wittow recently authored an article on cloud computing legal issues, specifically examining recent cases involving cloud computing issues and describing new types of claims that likely will arise as a result of the increased importance of internet-based connectivity (in contrast to desktop or local network-based resources) to provide all types of computing needs and related services. The article "Cloud Computing: Recent Cases and Anticipating New Types of Claims"  appears in the January 2011 issue of The Computer and Internet Lawyer.

Mark's article explains how cloud computing, as a leading means of digital distribution, has created new types of business models, which in turn have led to unique legal issues. Cases relevant to cloud computing arise in a variety of areas of law, including contracts, copyrights and privacy.

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FTC Proposes Broad New Privacy Framework, and Asks "How It Might Apply in the Real World"

by Henry L. Judy (Washington D.C.), Holly K. Towle (Seattle), Samuel R. Castic (Seattle), Jonathan D. Jaffe (San Francisco).

On December 1, 2010, the FTC released a preliminary staff report entitled “Protecting Consumer Privacy in an Era of Rapid Change” that has the potential to materially change the privacy obligations of all businesses in the United States. The staff report poses important policy choices regarding who controls data and what information will freely flow in the United States. It proposes a broad privacy framework and articulates a number of new and strengthened data privacy obligations that are almost certain to increase business compliance costs and potential litigation. 

While the staff report is only a preliminary recommendation, the final privacy proposal that emerges from the FTC will likely serve as both a guide for future enforcement actions, and as a basis for future legislation. The FTC is accepting comments on its proposed framework until the end of January 2011, and it is strongly recommended that businesses do so if they want to register their concerns before the FTC issues its final privacy framework.

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New Disability Access Requirements for Advanced Communications and Video

By Marty Stern (Washington, DC), Carol Lumpkin (Miami) and Stephanie N. Moot (Miami).

The President signed the 21st Century Communications and Video Accessibility Act of 2010 on October 8, 2010 (the “ComVid Accessibility Act” or “Act”). The ComVid Accessibility Act expands various disability access requirements to VoIP phones, browser-enabled smart phones, text messaging, Internet-enabled video devices, on-line video of TV programming, TV navigation devices, and programming guides and menus, among other things. 

Karen Peltz Strauss, who has the lead at the Federal Communications Commission (“FCC” or “Commission”) on implementing the ComVid Accessibility Act, appeared on a recent live program on Internet TV channel Broadband US TV and discussed the FCC's "enormous mandate" to implement the new Act.  Click here for a clip of Ms. Peltz Strauss' comments on the program.  (with permission from TV Worldwide).[1]  According to Ms. Peltz Strauss, “Every segment of the industry that has anything to do with broadband, television, including cable, satellite or broadcast, Internet-based television, as well as . . . Internet-based providers, traditionally regulated [telephone] companies, wireless companies” needs to be paying attention to the new Act.   “Virtually every segment that has anything to do with communications or video programming is covered.” 

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Law Seminars International presents Cloud Computing: Law, Risks and Opportunities

On December 13-14, 2010, Law Seminars International presented a seminar exploring different cloud computing service models and the challenges they pose. They explored what cloud computing is, how it works and the benefits it offers.

Leading practitioners, including Dan Royalty (K&L Gates Seattle), described the contracting and compliance challenges their clients face on a daily basis and shared their strategies for meeting them.  Among other things, the program provided pointers on identifying the legal and compliance issues around cloud computing and addressing them in cloud computing transactions.

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The 19th Annual Seattle Conference on Current Developments in Technology Law

December 9-10, 2010 

Washington State Convention Center
Seattle, WA

Online brochure

Presenters: Holly K. Towle
Sponsors: Law Seminars International

As the distinctions between telephone, television and data services disappear, many of the old geographical and functional boxes that used to help us organize our thinking have become irrelevant. Super computing, almost ubiquitous broadband, advanced visualization and large-scale data gathering have created new competitive opportunities on a global scale. They also have unleashed a torrent of fragmented information and the pressing question of what is really valuable.

We now have news aggregation services to manage the torrent, but what are the limits on the aggregator's use of copyrighted material? New social media services have created new marketing opportunities, but also new challenges for managing your online reputation. Distributed computing services are triggering a transition from point-of-sale product licensing to services access subscriptions and long term interactive relationships. New friction points, particularly those involving consumers, are leading to new regulatory requirements for technology companies.

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Live Webcast: Spurring Adoption and Use of Broadband

K&L Gates co-hosted a live webcast October 7, carried live on Internet TV channels Broadband US TV and National League of Cities TV.

You can access the free webcast by clicking here (registration is required).

Stakeholders in America's broadband future disagree on most issues, but not on this: with 35% of Americans not using broadband today and many others not using broadband to maximum advantage, spurring increased adoption and use is critically important to America's success in the emerging knowledge-based global economy.

FCC Commissioner Mignon Clyburn kicked off the program, joining BroadbandUS TV hosts Marty Stern and Jim Baller for a provocative discussion ofthe FCC's goals, activities, and progress in this area.

The program also included a panel on National Policy and Support, featuring Karen Peltz Strauss, FCC Consumer and Governmental Affairs Bureau; Emy Tseng, National Telecommunications and Information Administration; Dr. Kenneth Peres, Communications Workers of America and US Broadband Coalition; Nicol Turner-Lee, Joint Center for Political and Economic Studies; and John Windhausen, Schools, Health and Libraries Broadband Coalition. A second panel featured a look at success stories from around the country.

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FTC Settles with Twitter - More Painful Lessons in Basic Data Security

by Marc S. Martin, Henry L. Judy, Lauren Bergen Pryor

On June 24, 2010, the Federal Trade Commission ("FTC") reached a proposed settlement with the online social networking company Twitter, Inc.[1] ("Twitter") concerning data security breaches that resulted in unauthorized disclosure of users' personal data. While this is the first time that the FTC has held a social network liable for a breach of data security, it is not the first time that the FTC has sanctioned a company for failing to protect its customers' data and personal information.

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Privacy Implications of the FCC's National Broadband Plan

by Marc S. Martin, Martin L. Stern, Peter W. Denton

As we discussed in our recent client alert, the National Broadband Plan (the "Broadband Plan") of the U.S. Federal Communications Commission ("FCC")[1] contains an ambitious set of some 200 recommendations for regulatory and legislative actions to improve the innovation, access, and affordability of broadband Internet service.[2] Tucked among "big-ticket" items that have received much attention in recent weeks – such as reallocation of wireless spectrum and reform of the FCC's Universal Service Fund – are a number of less-heralded suggestions relating to privacy issues and the management of personal data. The implementation of these privacy-related Broadband Plan recommendations by Congress, the FCC, and the Federal Trade Commission ("FTC") could affect a wide range of firms, including broadband Internet access Internet service providers, advertisers, online content providers, and indeed any business with an Internet presence. The purpose of this alert is to provide greater focus and detail on the Broadband Plan's recommendations for privacy regulation.

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