August 2012

The Federal Trade Commission is publishing a Federal Register Notice seeking public comments on additional proposed modifications to the Children's Online Privacy Protection Rule. In updating the Rule to keep current with technology advances, in September 2011, the FTC issued a Notice of Proposed Rulemaking seeking comment on proposed changes to the Commission's COPPA Rule.

The Commission received 350 comments. In response to those comments and informed by its experience in enforcing and administrating the Rule, the FTC now proposes to modify certain definitions to clarify the scope of the Rule and strengthen its protections for the online collection, use, or disclosure of children's personal information. The proposed modifications to the definitions of "operator" and "website or online service directed to children" would allocate and clarify the responsibilities under COPPA when third parties such as advertising networks or downloadable software kits ("plug-ins") collect personal information from users through child-directed websites or services. The Commission proposes to state within the definition of "operator" that personal information is "collected or maintained on behalf of" an operator where it is collected in the interest of, as a representative of, or for the benefit of, the operator. This change would make clear that an operator of a child-directed site or service that chooses to integrate the services of others that collect personal information from its visitors should itself be considered a covered "operator" under the Rule.

The Commission also proposes to modify the definition of "website or online service directed to children" to:

• Clarify that a plug-in or ad network is covered by the Rule when it knows or has reason to know that it is collecting personal information through a child-directed website or online service;
• Address the reality that some websites that contain child-oriented content are appealing to both young children and others, including parents. Under the current Rule, these sites must treat all visitors as under 13 years of age. The proposed definition would allow these mixed audience websites to age-screen all visitors in order to provide COPPA's protections only to users under age 13; and,
• Clarify that those child-directed sites or services that knowingly target children under 13 as their primary audience or whose overall content is likely to attract children under age 13 as their primary audience must still treat all users as children.
• Finally, the Commission proposes to modify the Rule's definition of "personal information" to make clear that a persistent identifier will be considered personal information where it can be used to recognize a user over time, or across different sites or services, where it is used for purposes other than support for internal operations.

Marketers who want to reach consumers in Salt Lake City should be advertising heavily in NBC's London Games coverage. So should marketers who want to reach prospective buyers of their goods and services in San Diego, Kansas City, Milwaukee, Denver, Columbus, Norfolk, Richmond, Indianapolis, Austin, Nashville and Fort Myers.

Notice that the country's largest designated market areas-New York, Los Angeles, Chicago, Philadelphia, San Francisco, Dallas, Detroit and Houston among them-are nowhere on the above list. NBC puts out myriad viewership data during the two weeks that it airs its Olympics coverage, but it is always fascinating to see that a larger percentage of viewers in smaller markets, or at least ones beyond the largest mega-sized markets, are the ones that faithfully tune in night after night to watch the competition. It doesn't mean that more people overall are watching in those cities than in the top 10 DMAs, it just means a larger percentage of those watching the Games in each of those cities.

Twitter introduced what it is calling a political barometer to measure user feelings toward the two presidential candidates based on user Tweets, taking advantage of the huge amount of data coming through Twitter to add context to the political landscape. Twitter has partnered with data analysis folks from Twitter-search company Topsy and data polling firms to examine how user sentiment toward a candidate compares to all Tweets about that candidate across the site. Here’s how the scoring works, according to Twitter: “A score of 73 for a candidate indicates that Tweets containing their name or account name are on average more positive than 73 percent of all Tweets,” the company said in its blog post.

Apple claims Samsung is a cheat that copied Apple’s gadgets instead of making its own. The storyline (true or not) is simple enough — a popular inventor fights to protect the fruits of its genius from a shameless imitator. But Apple’s ability to tell that simple story in court is based on a sophisticated legal strategy that took as much time and creativity to develop as any one of its products.

Apple’s custom-built legal strategy can be seen in the unusual legal arrows it’s using to sling Samsung. The company’s dramatic accusations that Samsung “slavishly copied” the design of the iPad and iPhone, for instance, are based on a type of patent (called “design patents“) unfamiliar even to most intellectual property lawyers. Far less common than conventional “utility patents,” design patents protect the ornamental aspects of a practical object. According to law professor Sarah Burstein of the University of Oklahoma, design patents were traditionally limited to fields like furniture and lighting until Apple began obtaining them for consumer electronics. “It’s a credit to Apple and its patent counsel who made progress in getting them through clever claiming,” said Burstein, who specializes in design patents.