This post is the fifteenth, and penultimate, entry in a series of predictions from legal and business experts about the directions cyberlaw policy might take in 2013, solicited by editors of BNA's Electronic Commerce & Law Report during the closing weeks of 2012. We asked that the remarks be brief -- something along the lines of a Twitter "tweet" or an elevator pitch. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts responded, producing 307 separate assessments, predictions, or just plain complaints regarding any of the many legal subject areas that affect online businesses.
Lawyers who make their living at the intersection of law and technology are among the most engaged, optimistic, and enthusiastic attorneys I've had the pleasure to meet. We received dozens of comments that arose from their thinking about where technology is taking not just the law but society as well. Those are collected under the "Technology and Society" heading, followed by comments about directions for free speech online and consumer protection.
Common themes below: continued media convergence, the internet's ability to empower individuals and government challenges to individual expression, and blurring of the line between private and commercial spheres.
The experts' views:
Technology and Society
Technology simply outpaces the poor law, which struggles to balance everyone's interests. Security, privacy, big data, and IPv4 issues will be important in 2013. Michael Powell, @mpowell_iplaw, Partner, Baker Donelson Bearman Caldwell & Berkowitz PC, Atlanta.
Clash between privacy regimes and online activity will grow in 2013. Social media, analytics, geolocation, social sharing, cloud computing--it is likely too late to put the genie back in the bottle. Miriam Wugmeister, Partner, Morrison & Foerster, New York, N.Y.
The notion of "video games" as game consoles sold only to adolescents is anachronistic--baby boomers, CEOs, stay-at-home parents, teens, and toddlers are all using laptops, smartphones and tablets in equal measure and are enjoying games in the form of apps, online virtual worlds, exercise-based games, musical games, digital flip books, and the like. Businesses feeding this demand and contributing to the social aspects of these games will continue to be ahead of the curve, but they will need to be vigilant about analyzing the attendant trademark, copyright and right of publicity issues that can accompany such games. Lynne Boisineau, Partner, McDermott Will & Emery, Irvine, Calif.
2012 was the first Olympics on demand when multi-channel viewing went mainstream. Jonathan Armstrong, Partner, Duane Morris LLP, London.
The very design of the Internet--an open, global and distributed network--empowers individuals on the margins to make their voices heard and to innovate. Lynn St. Amour, @LynnStAmour, President/CEO, Internet Society, Geneva, Switzerland/Reston, Va.
Laws depend on societal & cultural norms. What is "normal" in a networked, linked, socially connected, overly exposed world without borders? Joseph Rosenbaum, @JIRLaw, Partner, Global Chair--Advertising Technology & Media Law Practice, Reed Smith LLP, New York, N.Y.
PSD and EMD allow more competition and newco's in SEPA payment market. Who will win the most? The golddigger or the provider of the digger's tools? Edwin Jacobs, @Edwin_Jacobs, Partner, time.lex, Brussels.
Unemployed millennials will team with VC's and pre-retirement seniors for knowledge transfer to new specialized business service providers in knowledge industries like law, accounting and engineering. William B. Bierce, @wbierce, Partner, Bierce & Kenerson, P.C., New York, N.Y.
The SEC's prospective rulemaking to allow internet funding portals under the Jobs Act will have a profound impact on crowdfunding for start-up ventures in 2013 and may supplant existing portals like Kickstarter.com. Tim Bukher, @tbukher, Partner, http://www.handalglobal.com, Handal & Morofsky LLC, New York, and editor of the Law Techie blog.
To what extent will the recent advent of virtual currency exchanges, like Kurrenci.com, allow gambling websites to sidestep the federal prohibitions against internet betting, and how will the government move to limit such loopholes? Tim Bukher, @tbukher, Partner, http://www.handalglobal.com, Handal & Morofsky LLC, New York, and editor of the Law Techie blog.
The law always lags behind technology. Will courts grapple with inline linking, hashtags, and sponsored stories in 2013? Fingers crossed. Brian G. Murphy, @frankfurtkurnit, Partner, Frankfurt Kurnit Klein & Selz PC, New York, N.Y.
In 2013, companies will really start competing on privacy, transparency and security. Alan Charles Raul, Global Coordinator of Privacy, Data Security and Information Law Group, Sidley Austin LLP, Washington, D.C.
Digital world--paper laws: Privacy. Publicity. Intellectual property. Sovereignty. Labor relations. Legal practice. Advertising. Security. Joseph Rosenbaum, @JIRLaw, Partner, Global Chair - Advertising Technology & Media Law Practice, Reed Smith LLP, New York, N.Y.
Convergence: Social media. Cloud computing. Mobile marketing. Crowd sourcing. Need we say more? Joseph Rosenbaum, @JIRLaw, Partner, Global Chair - Advertising Technology & Media Law Practice, Reed Smith LLP, New York, N.Y.
Two potential breakout legislative issues for 2013: Domestic drones and 3D printing. Policymakers will get interested in regulating both. Adam Thierer, @adamthierer, Senior Research Fellow, Mercatus Center at George Mason University, Fairfax, Va.
The recent defeats of plaintiffs in right of publicity suits is encouraging some companies to be more liberal in referring to famous people in their advertising. This is a mistake and I have a feeling these companies will soon be receiving cease and desist letters and it will cost them more to fight the claims and in PR than it would have to get permission. Marc H. Trachtenberg, @winstonadvlaw, Partner, Winston & Strawn LLP, Chicago.
The Justice Department now says that the Wire Act applies only to sports betting, and a federal court has said poker is a game of skill, not chance. But odds are still slim that internet gambling will be legal in the U.S. anytime soon, outside a few games in a few states. Michael Vatis, Partner, Steptoe & Johnson LLP, New York, N.Y.
As the lines defining "a celebrity" continue to blur and technology continues to advance, the current right of publicity laws in every state will need to be reevaluated to determine whether they are still relevant, or whether they require updating to encompass new ways of exploiting that right that did not exist when they were drafted. For those states without existing statutes, now is the time to consider implementing such laws. Lynne Boisineau, Partner, McDermott Will & Emery, Irvine, Calif.
Right of publicity vs. First Amendment--will EA be able to continue to depict avatars of athletes in video games without obtaining licenses? David Bernstein, Partner, Debevoise & Plimpton LLP, New York, N.Y.
Given the recent proliferation of gossip websites, such as the dirty.com and isanyoneup.com, and the rising number of publicized cyber-bullying incidents the boundaries of the safe harbor provided by Section 230 of the Communications Decency Act (CDA) are again being tested. Neel Chatterjee, Partner, Orrick Herrington & Sutcliffe LLP, Silicon Valley.
The next year will likely bring more cases in which courts struggle with the boundaries of Section 230 of the Communications Decency Act and where to draw the line with respect to holding social media sites responsible for user posted content. Aaron P. Rubin, @MoFoSocMedia, Of Counsel, Morrison & Foerster, San Francisco.
CDA section 230 continues to offer broad immunity for ISPs for non-IP claims even as legal theories mutate; like democracy, it seems to be the worst solution except for the alternatives. Rebecca Tushnet, @rtushnet, Professor, Georgetown University Law Center, Washington, D.C.
Russia attempts to tackle illegal activity on the Internet by creating a list of prohibited web sites that should blocked by ISPs. While some commentators praise the new legislation, others see it as a new form of Internet censorship. Igor Motsnyi, Partner, Motsnyi Legal Services, Moscow.
Consumer Protection Online
UK Advertising Standards Authority (ASA) to regulate OBA in New Year: Regulator's remit extended to cover online ads and active enforcement starts Feb. 4. Karin Retzer, Partner, Morrison & Foerster, Brussels.
Are you doing business online with German users? Make sure you are compliant with local distance selling provisions. Users tend not to buy if they don't trust a shop. Thomas Rickert, @thomasrickert, Managing Partner, Schollmeyer & Rickert Law Firm, Bonn & Frankfurt, Germany.
Self-reg organization NAD reminds us that ad claims come in all shapes and sizes--whether on a Pinterest board or in a contest headline--and if you're making a claim, you better have support for it, no matter how or where you're making it. Terri Seligman, @FrankfurtKurnit, Partner, Frankfurt Kurnit Klein & Selz PC, New York, N.Y.
Impact on merchants and licensors of mandated 2013 adoption by EU members states of new EU Consumer Rights Directive. Holly K. Towle, Partner, K&L Gates LLP, Seattle.
Groupon and Living Social class action settlements should serve as warning to merchants doing daily deals: To comply with gift card laws you need clear disclosures and long redemption periods for the paid value. Terri Seligman, @FrankfurtKurnit, Partner, Frankfurt Kurnit Klein & Selz PC, New York, N.Y.
Consumer privacy continues to be a hot button issue; industry should continue to educate consumers about the benefits of relevant marketing including cost savings, free content and well-tailored promotions. Francine Friedman, Senior Policy Counsel, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.
Some notable recent National Advertising Division decisions have rejected marketers' compliance with federal regulatory standards set forth by the agency with primary jurisdiction. Marketers should not expect that such compliance will be sufficient because NAD may still exercise its own expertise and require advertisers to discontinue or modify their claims it does not believe are appropriate. Andrew Lustigman, @advlaw, Partner, Olshan Frome Wolosky LLP, New York, N.Y.
Mobile marketing pitfalls: Failure to disclose, esp when kids' privacy involved, and not getting clear consent from users to text them. Terri Seligman, @FrankfurtKurnit, Partner, Frankfurt Kurnit Klein & Selz PC, New York, N.Y.
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