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Now, Web-Birds of a Feather Can Actually Flock Together

Well, it seems like almost yesterday (actually a little more than a month ago), that a subsidiary of Mixx, the popular social voting site, launched TweetMixx, a new service that enables companies, brands, politicians, and celebrities collect and aggregate all the mentions about them on Twitter on a single page. “TweetMixx Channels,” as the service is branded, enables you to create a branded page, tailored to you – from your own Twitter Tweets and RSS Feeds to comments from customers, reviewers, fans or pretty much anything you like. We’ll use “you” generically to mean any label that fits – people, brands, goods, services, you name it.

Ever see those vanity license plates on cars? Now you can have your own vanity Twitter Mixx channel, and the service uses “Tabs” to allow a variety of features and functions. There’s one that uses search terms to find links and tweets about you on Twitter, in apparent deference to the new Federal Trade Commission Endorsement Guides (see our post FTC (Revised) Endorsement Guides Go Into Effect earlier today; there’s an “Insiders” tab that identifies anyone with a material connection or that is associated with you (e.g., employees, agents, paid endorsers); and other tabs that enable you to customize and populate the channel. In addition, since the service appears to act both as an aggregation and a search tool for content about you, consumers can find all the Twitter traffic and channel information about you in one place, and at the same time, you can use the service to track and monitor conversations and references to you on Twitter. Right for consumers; right for you – clever.

Remember Facebook’s personalized URLs just a few months ago (Legal Bytes blog post Facebook Adds Personalization & a (Brand) New Dimension)? This is not simply another social media fad. Already companies are getting on the bandwagon (or should we say birdwagon). Today, the National Hockey League (www.nhl.com) will be among the first few enterprises launching its TweetMixx Channel – its own private label branded distribution platform using the TweetMixx service. TweetMixx even provides you with a widget that can be embedded on other websites (think bloggers, profile pages, etc.). The NHL’s “Chatter” tab on TweetMixx, for example, will provide streaming tweets from hockey fans, while a “Links” tab will keep track of the tweets that are retweeted most often, and will rank these favorites by putting them at the top of the TweetMixx Channel web page.

So for advertisers, brand managers, marketing professionals and agencies, this new tool is the beginning of enabling a clearer strategic use of Tweets. Just as branded pages and channels, enabling two-way conversations, have emerged on YouTube and Facebook, allowing brands and celebrities to engage with consumers and fans, TweetMixx seeks to provide an ecosystem for Twitter traffic. Chris McGill, founder and CEO of Mixx, noted that each TweetMixx Channel can be analogized to a “tree.” You have TweetMixx plant a customized tree of your choice, then you are given the tools to nurture it, to prune it and to watch it grow. Do it right and you have branches where Twitter users can “flock, sit and sing” about you – the people, products, services and things they care about. TweetMixx owns the forest!

Can you or your brand afford to stay out of the social media arena? Are you afraid of the new risk-reward paradigm and uncertain what to do? Do you know you have to do something, but are suffering from analysis paralysis? Have traditional models got you stuck in the mire? Call us. Our Advertising Technology & Media law practice group and our newly formed Social Media Task Force already have unparalleled depth, experience and bench-strength in understanding, working with, and advising clients in this brave new world. From developing policies to monitoring compliance; from protecting and enforcing your rights to developing relationships and partnerships with others to engage in the conversation. To win it, you have to be in it. If you need help, contact me, Joseph I. (“Joe”) Rosenbaum, or the Rimon attorney with whom you regularly work. We are happy to help.

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Join Us for Cookies – It’s the Social (Media) Thing to Do

Just a reminder that space is filling up, so if you want to join us for any of the three West Coast social media law seminars please use the registration link below to sign up. Joseph I. (“Joe”) Rosenbaum and Anthony Traymore from the Advertising Technology & Media Group in New York and local Rimon lawyers in each office will present: “Social Media: It’s 10:00 p.m. Do You Know Where Your Brand Is?”

Can’t attend?  If you are a client, we can do a customized in-house seminar for your legal department, executive management, marketing or other professionals. Not a client, perhaps you should be.  Interested? Contact Joe Rosenbaum.

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Social Media: It’s 10 p.m. Do You Know Where Your Brand Is?

Did you miss our New York seminar on Social Media? Well now you can catch us in California. Three of Rimon’s offices in California will be hosting a seminar on social media, where Joseph I. (“Joe”) Rosenbaum and Anthony Traymore from the Advertising Technology & Media Group in New York, and local Rimon lawyers in each office, will present:

“Social Media: It’s 10 p.m. Do You Know Where Your Brand Is?”

Tweets, profiles, avatars, blogs, chats, friend requests, user-generated content, personalized pages, customized URLs—keeping up with social media is daunting. Social media continues to change the rules of engagement, and for companies, brands, marketing professionals and their legal advisors, engagement is now the rule. Just as economic and advertising models for whole industries are changing to take advantage of social media, industries must confront new and unprecedented legal risks in this brave new world of engagement—a world where lawmakers, regulators and courts are struggling to figure it out. Legal risks and challenges abound; so does opportunity—for brands who know before they go!

Rimon LLP is a State Bar of California-approved MCLE provider, and this course qualifies for 1.5 general MCLE Credit. The presentations will highlight:

  • Best practices for corporate engagement in social media
  • How to approach workplace policies
  • The current and potential legal landscape evolving around social media platforms
  • Case studies—social media successes and failures
  • Highlights of our “white paper”: A Legal Guide to the Commercial Risks and Rewards of the Social Media Phenomenon, recently released by the Rimon Social Media Task Force
  • And much more

Because of the high level interest received, we will be conducting the seminar in three of our California offices.

1.  Rimon’s San Francisco Office

Tuesday, December 8, 2009

Registration & Breakfast: 8:30 a.m.; Program: 9:00 – 10:30 a.m.

 

2.  Rimon’s Silicon Valley (Palo Alto) Office

Tuesday, December 8, 2009

Registration & Lunch: 12:30 p.m.; Program: 1:00 – 2:30 p.m.

 

3.  Rimon’s Century City (Los Angeles) Office

Wednesday, December 9, 2009

Registration & Breakfast: 8:30 a.m.; Program: 9:00 – 10:30 a.m.

 

We hope you will attend, and we encourage you to share this invitation with others. For your convenience, here is a link to the invitation & registration page for these sessions.

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The Fed Notices an Overdraft – Decides to Close the ATM Window

This post was written by Roberta G. Torian and Joseph I. Rosenbaum.

On Nov. 12, the Federal Reserve Board released its final rule on overdrafts for ATM and one-time debit card transactions (the “Final Rule”), which amends Regulation E. Although it hasn’t been published in the Federal Register yet, Legal Bytes thought you might like a little heads-up as to what is in the new Final Rule.

To start, a financial institution will have to obtain a consumer’s consent – in advance – to assess a fee for paying an overdraft in an ATM or one-time debit card transaction. To get consent, the financial institution must provide a description, give the consumer an opportunity to opt-in; and if consent is given (which can be revoked at any time), give the consumer written or electronic confirmation. While existing customers who haven’t opted in to the overdraft program by then can’t be charged a fee for these overdrafts after Aug. 15, 2010, for everyone else, compliance is required by July 1, 2010.

Here’s one you might not have considered. What if the system in place with the financial institution doesn’t distinguish between various types of overdrafts (e.g., one-time debit card versus recurring debit card transactions)? Well there is a safe harbor, but you’ll have to call Roberta G. Torian (or read the Final Rule yourself).

Now, the Final Rule doesn’t mean a financial institution is required to pay overdrafts, whether or not a consumer has consented, and it still allows them to maintain policies on overdraft limits, frequency, and other factors that would restrict the customer’s overdraft privileges. In other words, it doesn’t change an institution’s right to manage its overdraft program or risk – only the situations where it can charge a fee to the consumer.

The Final Rule does, however, delve a bit more deeply into the marketing and cross-selling considerations financial institutions must comply with. For example, the Final Rule prohibits conditioning other account services on opting in to the overdraft service. Furthermore, the consumer must be offered the same account terms, conditions and features, whether or not they opt-in to the overdraft program.

The Federal Reserve Board has created a model form for use by financial institutions (one that can be modified to fit the individual programs available) to obtain the consumer’s opt-in consent, and that highlight the disclosures required by the Final Rule. The form was developed because the Final Rule also prohibits including this new overdraft "consent" as part of the basic account agreement when a consumer opens an account. In other words, you need to give the consumer a meaningful opportunity to decide whether to opt-in, and not simply bury the "consent" in a string of clauses and terms.

Although the rule has not yet been published in the Federal Register, you can download a copy of the Final Rule right here. But if you really want to know the (opt) ins and (opt) outs of Regulation E, contact Roberta G. Torian, Joe Rosenbaum or any of the lawyers at Rimon with whom you work. Rimon has a full service Financial Institutions Group that can help virtually any financial institution with legal support, service, and representation, whenever and wherever the need arises. Call us, we are happy to help.

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Death Knell or Glimmer of Hope: Care to Bet on Online Gambling?

Legal Bytes has previously reported to you concerning Title VIII of the Security and Accountability For Every Port Act of 2006 (or SAFE Port Act), which is the part of the SAFE Port Act endearingly known as UIGEA (the Unlawful Internet Gambling Enforcement Act of 2006). On Tuesday, the U.S. Court of Appeals for the Third Circuit rejected a claim by the Interactive Media Entertainment & Gaming Association that UIGEA is too vague or unconstitutional or infringes on the individual’s right to privacy. The unanimous ruling was issued amid a tug-of-war between the Justice Department that is anxious to crack down on the gambling industry, and the actions of Rep. Barney Frank (D-Mass.) and other members of Congress who are advocating legislation to legalize the gaming industry.

The decision to uphold UIGEA, which banned payment processing by U.S. financial institutions for online betting, might appear to be a blow to the gaming industry, but there is a potential ray of hope. On page 8 of the Court’s Opinion, the Third Circuit concluded UIGEA was not constitutionally vague, nor had the law made any gambling activity illegal. Rather, the vagueness problem cited by the Court arose from the underlying state law. To wit, the Court explicitly notes what many in the industry have known for a long time: “[T]he Act itself does not make any gambling activity illegal [under the UIGEA]. Whether the transaction in Interactive’s hypothetical constitutes unlawful Internet gambling turns on how the law of the state from which the bettor initiates the bet[.]”

One can thus read this decision as an opportunity for state gambling clarity. Currently, only six states in the United States have an outright prohibition against Internet gambling; the other 44 states (and U.S. territories) have an opportunity, if they wish to seize it, to legalize, authorize, license, regulate and potentially tax online gambling.

For the record, the Frank Internet gambling legislation that proposes to delay enforcement of UIGEA pending the enactment of a federal online gambling licensing and regulatory framework, has been pending in committee since May, and there are many pressing items on Congress’s plate. Thus, it is unlikely that Congress is poised for quick action on this legislation. That said, the court’s decision appears to leave the door to online gambling enabled by state legislation open. Stay tuned.

If you need to know more, contact Amy S. Mushahwar directly, or you can always contact me, or the Rimon attorney with whom you regularly work. We are happy to help.

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Credit Card Act of 2009: Act I, Scene 1

A few months ago, Legal Bytes noted the progress of the Credit Card Act of 2009 (the “Act”), and when it was signed into law, we updated that blog post with a note about the inclusion, for the first time in federal law, of coverage of gift cards.

Today, some of the credit card protections the Act affords consumers go into effect. First, credit card bills must be mailed to the consumer at least 21 days before payment is due. Second, significant changes to the rates or fees that apply to credit cards can’t be implemented unless consumers are given at least 45 days’ notice. In both cases, this represents an elongation of the prior regulations (14 days and 15 days, respectively). 

Provisions of the Act also in effect now prohibit credit card issuers from raising their fees and interest rates without any notice if a credit card account holder fails to make a payment on time or goes over their credit limit. In most cases, such a charge would have required approval from the issuing institution anyway.

Most of the other significant provisions of the Act come into effect next February (e.g., restrictions on increases in interest rates for existing credit card balances), and by July 2010, the Federal Reserve Board is to have crafted and approved new rules covering consumer disclosures (i.e., advertising, application forms, etc.).

If you need to know more about compliance and credit cards—offline or online—contact me (Joseph I. Rosenbaum) or the Rimon attorney with whom you regularly work. We are happy to help.

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Gift Cards: The Chart is Free. It’s Our Experience You Pay For.

Last month, Legal Bytes posted Online Gaming Laws Survey – Free (Yes, You Read Correctly), which also included a link that would allow readers to download a copy of a chart summarizing the U.S. laws that apply to online gaming (Survey of U.S. Federal and State Gaming Laws & Regulations). In that posting, I asked “Why would a law firm be giving away such valuable research for free online, on the web, for everyone to see?” The answer, my friend, is . . . (you were expecting a Bob Dylan line, weren’t you) . . .

The answer is simple. We know that many lawyers and firms can do research! While it may come as a shock to some, it comes as no surprise to us that Rimon may not be the only, or even the first, law firm that has done 50-state surveys of various laws and regulations. However—and it’s a big HOWEVER—Legal Bytes may be among the few lawyer-driven blogs that actually gives research away to any visitor to our blog—for nothing. You don’t even have to be a client, but you may want to be. It’s free. Yours for the taking.

It’s free because in this age of information and social media, we believe it’s not the research that distinguishes lawyers or law firms. Oh, of course we must do research and, of course, we need to be good at it. We are. But clients want lawyers who can wisely and effectively apply and use the research; lawyers who know how to use years of hands-on experience gained from working with clients, and apply it to real-world, real-life and real-time situations. We give research away because our sustainable competitive advantage is based on relationships, and the depth and wealth of experience that enables us to bring value to clients when they call.

So, just as with online gaming, we turn today to gift cards and gift certificates, online and offline, and the wealth of experience our Advertising Technology & Media law group has developed and applies regularly for clients. The experience that lets us give valuable research away for free. So enough philosophy, show us the money.

In connection with the work we do for many clients, we have found it useful to develop and maintain a database, which we update periodically, relating to Gift Cards, payment instruments that are increasingly blurred with prepaid debit cards, stored value cards, smart or chip-cards, reward cards, discount certificates, and traditional credit, charge and debit cards. If you are in this market, you already know there are regulations that require certain disclosures, certain restrictions on expiration dates and on the imposition of inactivity fees, as well as escheat and abandoned property laws that may apply on a state-by-state basis. You also know that for the first time, the Credit Card Act of 2009 will impose federal legislative and regulatory requirements on gift cards.

So with pleasure to all of our current (and future) Legal Bytes readers and subscribers, here is a link to our publicly available chart covering Federal and State Gift Card Laws. The chart provides a handy citation and reference tool for the various gift card and gift certificate laws in the 50 United States and the District of Columbia, and includes a description of the newly enacted Credit Card Act of 2009, which provides certain consumer protections applicable to gift cards under U.S. federal law.

Now the disclaimers. First, no chart can be as comprehensive or as up-to-date or clear as actually reading and knowing the statutes and regulations themselves. It is a guide, not an authority, and you should not rely on it for anything other than as a roadmap to proper and thorough legal counsel based on the source material itself. That said, let’s not minimize its value either: it represents the distillation of years, and of hours of work and effort. A special thanks to Keri Bruce and Stacy Marcus for helping to consolidate and refine it so that it is ready for prime time.

Continue reading “Gift Cards: The Chart is Free. It’s Our Experience You Pay For.”

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Stimulus Package Includes Broadband Opportunities

This post was written by Amy Mushahwar and Judith Harris.

On Feb. 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (otherwise known as the Stimulus Package) with two broadband deployment grant funding opportunities. As a follow-up to this statute, the Departments of Agriculture and Commerce recently released a Notice that will apply to awarding the first $4 billion of the total $7.2 billion in federal Stimulus Package broadband funds.

Broadband providers are already devising applications to serve rural, unserved and underserved geographic areas. But, did you know that other opportunities in the Notice could be of interest to you? For example, the Notice provides funding to conduct education campaigns in order to stimulate broadband uptake, and local broadband providers may need to partner with regional educators or advertisers to assist with these grass roots education campaigns. Or, broadband deployment applicants receive preferences for linking “community institutions” (which would include schools, universities and hospitals, to name a few) to their proposed broadband networks. The community institution preference would provide unique opportunities for those companies facilitating telemedicine or distance learning to partner with local telecommunications providers.

A link to a nuts-and-bolts Alert regarding the basic components of the NOFA and helpful deadlines is provided below. The Obama administration seems determined to move things along expeditiously. Applications will be accepted on a rolling basis from July 14 until Aug. 14, 2009, so you would have to work quickly on this, if you have any interest in riding this particular train.

You can view Rimon’s full Alert by clicking the link below:

Broadband Stimulus Notice Released with Application Details

If you need to know, you need to contact Amy Mushahwar, Judith Harris or your favorite Rimon attorney—who will be more than happy to help you.

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Transborder Transfers of Data Outside Europe Need New Rules

The European Commission established a Data Protection Working Party on data protection and privacy—an independent advisory body set up under the Data Protection Directive. This Working Party recently published an opinion relating to the EC’s draft standard contract terms that apply to the movement of data across national borders, notably between Member States within and outside of the EU. 

Specifically, the Working Party recommended that the Commission develop brand new model contract provisions to deal with international and multi-national data processing involving transfers of data outside the EC—a long-standing sore point among companies in countries that have historically been viewed as having "inadequate" privacy and data protections. These model or standard contract terms would establish acceptable contractual protections between entities that control data within the European Union/European Economic Area (EU/EEA) and data processors they use outside the European Community, to ensure protections are comparable.

Continue reading “Transborder Transfers of Data Outside Europe Need New Rules”

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France: Online Ads Could Lead to User Data ‘Merchandising’

In a report entitled “Targeted Online Advertising” (La Publicité Ciblée en Ligne), presented in February and recently released publicly, the French data protection regulatory authority (CNIL) has expressed concern that targeted online advertising could be a conduit for the merchandising of personally identifiable information about online users. 

The CNIL has been examining context-sensitive, behavioral marketing and targeted advertising mechanisms online, and is concerned about privacy implications. The report notes that analyzing online user data for the purpose of serving more relevant advertising involves the collection of Internet protocol addresses, what websites a user arrived from or subsequently visited, and even key words entered by the user. In case you haven’t thought about it, definitions are hardly uniform in laws and regulations around the world, i.e., an IP address is considered personal data in the EU, but is not personally identifiable information in the United States. 

The report raises an alarm over what could be a means of “systematic profiling” and examines what it believes are growing risks to privacy in this context. In France, and many jurisdictions, targeted advertising must comply with the same data protection rules that apply to the use of personal data online. The French authorities have consistently maintained that users should be specifically informed about how their data will be used, and should be given the opportunity to opt out of these uses—even if it means they can no longer use the services available on the site.

The report also specifically notes that many free services on the Internet are actually subsidized by advertising. While “free” is an accurate financial description in a literal sense, consumers often don’t appreciate they are actually paying a “price”—the value of personal information provided in exchange for “free” services they receive online. 

While the report does not attempt to cover mobile or wireless advertising broadly, it does note that adding information about a user’s location through GPS and other technology, adds tracking capability that the CNIL fears will allow for even greater intrusion and profiling of individual behavior. You can read the entire CNIL report in French on their website at “La publicité ciblée en ligne” (Targeted Online Advertising).