1. May 19-20 l Washington, DC l Omni Shoreham Web Hosting Potentials and Pitfalls David Snead Attorney W. David Snead, P.C.

2. Roadmap Legislation Litigation Green Hosting Information Demands Practical advice

3. Legislation Privacy Several different bills prohibiting “spyware” Significant difficulty defining spyware Notice and consent Disclosure Behavioral advertising attracting most attention – state and federal activity FTC tasked with providing information to Congress Breach notification Costs Focus issues PCI standards may be floor

4. Sectoral approach in decline Privacy remains focus Disclosure gaining traction Breach notification law likely FTC primary enforcement entity unfair and deceptive

6. Name Phone number Street address Past purchases Model numbers Purchase dates Information from Zillow Breach of (Privacy) Contract Breach of (Commercial) Contract Diminution of Value Fraud and Deceptive Trade Practices Class Action

7. Companies held liable for implementation errors Social networking not universally accepted More than one privacy policy may be required

8. Add 3 lines of code and reach millions of users Promote your business in an organic, social way Tag placed on advertisers site Facebook knows that user is on advertiser’s site Activity of user sent to friends

9. Facebook user visits Blockbuster.com Beacon script runs on Blockbuster.com Blockbuster.com sends visit information to Facebook Facebook has rental, purchase and queue information Opt out pop up Users friends have Blockbuster.com information

10. Proactive consent required to share information with users. Not to transmit.

11. Breach of (Privacy) Contract Breach of (Commercial) Contract Violation of the Video Privacy Protection Act Violation of Blockbuster policy Class Action

12. Companies held liable for implementation errors Social networking not universally accepted More than one privacy policy may be required Data recipients have responsibility for privacy Opt out remains only accepted default Use current privacy laws to guide new ideas New business ideas require examination of old contract relationships

13. Lessons Learned Multiple privacy policies Opt in remains only accepted default Current contracts may limit new ventures, require amendments

14. Information Demands Any and all materials, containing any information…any and all back-up tapes which contain or store any electronic mail from any past or current…electronic mail accounts.

16. Must first confer Order is necessary to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Costs may be assessed Protective Order 7 factors Request is not specific Other sources more accessible Predictions as to the importance and usefulness of the requested information. The importance of the issues at stake in the litigation. The parties’ resources Material is Inaccessible Refuse to produce. Burden is on you to show that material is not reasonably accessible. Once demonstrated, burden shifts. Motion to compel

17. Lessons learned Prepare for requests for production Amend TOS to require clients to bear cost Amend TOS to specifically address issue Determine your tolerance for risk Confer with parties early and often Assess costs of storage now

18. Green Hosting

20. General claims much more difficult to prove (avoid) Seals of approval must reference basis for award Third parties certifications must be independent Substantiation Do not exaggerate attributes or benefits Content claims must be qualified What part of your product does your claim apply to? Specificity Symbols and words used must reasonably relate to consume association Symbols must mean something Symbols and words