The Tornado Hits Kansas(and the rest of the world)

Pay no attention to that man behind the curtain!

So let’s look behind the curtain at the implications to advertising, marketing and the confusion arising between search, surveillance and privacy, spawned by the convergence of three innovative technological platforms that are also transforming our world:

Cloud Computing

Social Media/Networking

Mobile/Wireless

‚What chance has the ignorant, uncultivated liar against the educated expert? What chance have I . . . . against a lawyer?‛ Mark Twain, ‚On the Decay of the Art of Lying,‛ 1882

If I Only Had CourageThe Rise of Cloud Computing

Yeah, it's sad, believe me, Missy,When you're born to be a sissy,Without the vim and verve. But I could show my prowess, Be a lion, not a "mowess,‚ If I only had the nerve.

ANDWith IPv6 there will be a

unique, static IP address for every device

Cloud Computing:Dynamically scalable virtualized information services delivered on demand over the Internet. Yankee Group: ‚Clouds in 2010: Vendor Optimism Meets Enterprise Realities, Yankee Group Research, Inc.

Cloud ComputingWhat Me Worry?

Privacy & Data SecurityRegulatory Compliance

Intellectual PropertyOwnership

Performance MetricsJurisdiction

Litigation & GovernmentContractual Relationship

TerminationTax

Disaster Recovery

Business ContinuityInsurance

Antitrust – CompetitionPricing

Availability & AccessShared Applications

Shared InfrastructureShared Data Resources

Competitive IssuesEnforcement Issues

I N T E R O P E R A B I L I T Y

Cloud Trends to Watch

Cloud providers will be able to grow mindshare but not market share (yet)

Private clouds present both opportunities and challenges

Telecom providers will begin to close the gap between public and private cloud environments

Cloud providers and infrastructure builders will invest in security and compliance management

The collaboration between infrastructure builders and softwarevendors will intensify

If I Only Had A HeartThe Rise of Social Media

When a man's an empty kettle, He should be on his mettle, And yet I'm torn apart. Just because I'm presumin‘ That I could be kinda humanIf I only had a heart.

“The web is more a social creation than a technical one. I designed it for a social effect

– to help people work together – and not as a

technical toy.”

Tim Berners-Lee, “Weaving the Web: The Original

Design and Ultimate Destiny of the World Wide Web”

Another “C” ???Social Media Market Dynamics

Remember Content Context Control

In social media add: Conversation

•Enable Conversations•Influence Conversations•Monitor Conversations•React to Conversations•Monetize Conversations

In the 1970s, Deep Throat, a sexually explicit pornographic movie migrated sexually explicit sex from the home into the movie theater – hardly confidential, private or hidden from public view. Yet also in the 1970s, the label ‚Deep Throat‛ became the code-name for the confidential source used by Carl Bernstein and Bob Woodward of The Washington Post investigating the Watergate scandal during the Nixon administration.

And now social climbing?

Given that studies consistently show consumers trust other consumers – their peers – more than advertisers (and government) when it comes to product and service recommendations, does it come as any surprise that ‘influence’ peddling has now been extended to consumers.

If I Only Had A Brain . . . . .The Rise of Mobile

I could wile away the hours,Conferrin' with the flowers,Consultin' with the rain.And my head I'd be scratchin'While my thoughts were busy hatchin'If I only had a brain.

Tickets to Events

PrescriptionsPayments

ID & Security

PodcastsCurrency

Web AccessSearch & E-mail

TV, Radio & Movies

Music

DVRBooks

Text, Image& Voice

Discount Coupons

Newspapers & Magazines

GPSBluetooth

Web Technology, GPS, RFID, Bluetooth, Virtual Reality, QR Codes, Augmented Reality Overlaid with Mobile Further Blurs Surveillance and Privacy

User Search & InputSocial Networking with Location SharingGeo Targeting – Location, Location, LocationCoupling Location with ContextCoupling Location with BehaviorCoupling Location with ContentLocation Sharing Capabilities• Among Users; Among Devices; Among Others

Advertising Goes Has Gone Mobile

‚Privacy is the right to be alone--the most comprehensive of rights, and the right most valued by civilized man.‛ Louis D. Brandeis

Lions and Tigers and Bears, Oh My!

Content = Intellectual Property

Context = Search, Surveillance

Control = Privacy = $$$$$$

‚It is of interest to note that while some dolphins are reported to have learned English - up to fifty words used in correct context - no human being has been reported to have learned dolphinese.‛ Carl Sagan

"Content is King‚ William Henry "Bill" Gates III, essay of the same title, 1996.

The ________ to Privacy ??"The Right to Privacy"

Louis Brandeis & Samuel Warren4 Harvard Law Review, 193-220 (1890-91)‚The intensity and

complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world…solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress…‛

On the Internet, nobody knows you’re a dog.

1993

On the Internet, everybody knows you’re a male beagle who prefers dry dog food, sneaks into the master’s

bedroom, lying on the bed watching cable and who wears a specially designed, hypo-allergenic flea collar.

2012

I Have a Feeling We’re Not

In Kansas Anymore

Privacy is no longer just about controlling access to us and information about us. We have become schizophrenic in our use of terminology and distinguishing between the information and the collection and use of the information.

References to privacy are now consistently and persistently used to refer to online search, surveillance, data matching, data mining, profiling, geo-targeting and other forms of behavioral data gathering

Sometimes I lie awake at night and ask ‚Where have I gone wrong?‛ Then a voice says to me, ‚This is going to take more than one night.‛ Charlie Brown, from Peanuts, by Charles Schulz

Perceived as a belief there is also a right to control information about us . . . even if that information is publicly available and even if it is neither confidential, nor sensitive.

Law

Contextual & Societal

Norms & Rules

Technology/Platform

Everyone is Schizophrenic, Why Should the Law Be Different

We welcome the prevention of accidents, terrrorism and crime, but bemoan the intrusion by governments, corporations and private citizens, into our private lives and the use and exploitation of information about us.

Surveillance is viewed both as a way to avoid or minimize risk and also as a cause of risk.

Technology Changes the Rulesand the Game

Changing the Tires on a Moving Car?

Governmental intervention may be necessary to protect consumers from abuse, but can a concretized, codified piece of legislation remain relevant or defensible as innovation and technology which could not be predicted remains unpredictable?

Since consumer privacy and data protection have always been context specific and will continue to evolve, how can they be harmonized across nations, cultural and local boundaries;

Mobile devices will expand the domain of advertising, challenging the ability to capture consumers’ interest on mobile screens, while the opposite takes place in living rooms – distinctions between desktop computing and home entertainment being irrelevant;

Cloud computing and interoperable providers will make content, application programming and processing accessible anywhere, anytime and will effectively outsource the evolution of technology, making distinctions between and among devices irrelevant.

Online gaming and the interplay between gaming console, entertainment and product placement, virtual worlds and display advertising are all blurring (pardon the pun) right before our eyes.

Since advertising models and economics, together with legal frameworks, continue to change, with metrics and quantification methodologies argued over, the roles of advertisers, agencies, media buyers, broadcast and publishing networks as well as ISPs, search engine, browser and web hosting companies – the technology players –will also continue to change.

Everything is ChangingAnd Change is Difficult

If consumers are empowered and brands and advertisers and agencies can’t control what they traditionally controlled then:

•Advertising & Marketing must change;

•Economics & Revenue Streams must change;

•Rules of Engagement must change; and

•Regulation, Law & Lawyers must change!

But Change is Difficult

Does This Make You Happy or Make You Nervous?

Pizza Palace ‘30 Minutes or it’s Free’

Resources – More Information

www.adlawbyrequest.com www.advertisingcompliancelaw.com

http://www.reedsmith.com/cloudcomputing www.reedsmith.com/networkinterference

Coming Soon:

Mobile Mayhem: A Legal Guide to a Wireless World

Q u e s t i o n s ? ?

Thank You !

Joseph I. RosenbaumPartner & Chair

Advertising Technology & Media Law Practice

T: 212 702—1303 M: 646 522-0083

jrosenbaum@reedsmith.com

www.LegalBytes.com

April 22-25 • South Seas Island Resort • Captiva Island, Florida