"There are two Americas," Freeman quipped, in reference to a phrase used often in speeches by Democratic Vice Presidential candidate John Edwards. "There's government and there's business." And where issues regarding who owns consumer data arise, the government cares about who has the information whether it's publishers, businesses, or third- parties. Freeman set out the legal and regulatory framework of pertinent issues where behavioral marketing is concerned.
Freeman, a former staff attorney at the Federal Trade Commission's Bureau of Consumer Protection, told attendees that the government focuses on "misuse" of data. "Misuse" is defined as a use a consumer wouldn't expect, or a use unrelated to the reason consumers offered their information. Third-party vendors can be cited for failing to disclose that they offered consumer information to other vendors. Therefore, non-disclosure agreements should be in place with all vendors, Freeman said. For the collection of non-personal information, publishers must disclose in privacy policies the names of third-parties that will have access to the data and how they will use it. Consumers must also be given the choice to opt-out.
If personal and non-personal information is merged, that action must be removed from the policy and made explicit upfront. "When you change the deal on the consumer, you must go back to ask for permission," Freeman said.
Federal legislation pending in Congress advances that all deceptive practices are illegal and require information collection programs to give "clear and conspicuous" notice to consumers. Freeman said that the federal legislation, if passed, should pre-empt all state legislation. Utah's Spyware Control Act has been enjoined preliminarily.