Dispatch From DC (or You Can’t Save the Village Idiot All the Time)
While everyone packed into the room next door was learning how to harness the unsuspecting masses into pitching their wares for them - at Viral and WOM - I was learning how those very actions may later be deemed deceptive or an invasion of privacy. Boy, are those people going to be sorry they filled that room before I made it in there.
In truth, this session was a very interesting and timely. Gary Arlen, President of Arlen Communications was Moderator. His firm represents Sony, the NFL, Microsoft, and The Washington Post among other well-known groups. Joining him as panelists were Christine Varney, head of the Internet Practice Group at law firm Hogan & Hartson - clients include MySpace, DoubleClick, eBay, and others - and Alen Chapell, President of Chapell & Associates, who’s firm helps organizations “increase the transparency of their business practices.” To me, Alen sounds like a person you call when something has gone terribly wrong.
The panel started out telling us of a few of the regulatory sharks that now swim in our waters -The FCC, The Department of Justice, the FBI, State Attorneys General, and even District Attorneys. Their message was that our activities as marketers are creating the framework that will later be used by the government for analysis from a regulatory perspective. That may sound fairly benign, but probably not something you want to experience.
If you have a marketing product, she encourages you to think objectively about the questions:
- Is it deceptive?
- Is it invasive?
If your product is either, you need to weigh the legal risks you may face.
According to Varney, who at one point worked for the FCC, the regulatory priorities have shifted along with national politics. Democrats have tended to favor privacy issues, and Republicans have been more focused on what constitutes “deceptive advertising.” With Democrats back in control of Congress, she believes that we’ll soon be seeing privacy on the agenda again in the near future.
Allen Chapell used the ringtone business as an example of an industry that is ripe for regulation. In his scenario, a child with a phone on a family plan can easily subscribe to a ringtone subscription without the parent’s knowledge or consent. So, in that scenario he would advise the industry itself begin establishing standards to help avoid later scrutiny.
Gary Arlen gave us a quick run-down of some of the current issues of interest in the regulatory field:
- Network Neutrality - The FCC has picked up this topic again recently
- Patent Issues
- Anti-Trust - He was entertained that Microsoft was one of the first to cry out about the anti-trust issues of the Google/DoubleClick deal.
- Copyright Issues
- Pharmaceutical Advertising
- Spyware
- Trademark Issues - they gave a nice “shout out” to my state’s (Utah) incredibly sharp legislators who write “mind-boggling” legislation tailored to the interests of Utah business. Way to go guys!
- Taxation - there is a strong push to implement some kind of comprehensive taxation system.
My favorite part of the session was when Christine Varney was reminiscing about her days at the FCC. Apparently their department’s motto at the time was “You can’t protect the Village Idiot 100% of the time.” Another gem was “people will sell their mother’s entire life’s history for 10 cents off a Big Mac.” When asked what would surprise you most in the coming year, her response was “that they actually did something.” Not that I’d want you to have the impression that Ms. Varney was flippant; she seems quite serious and capable. But, with answers like these I’d love to hear the stories she might tell at an ad:tech party later.
