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Mobile blurs line between data protection and privacy, say legal experts

NEW YORK ? Legal and privacy panelists at Mobile Marketer?s Mobile FirstLook: Strategy 2015 conference agreed that mobile is blurring the line between data protection and privacy, with concern growing about personal data that is not necessarily private and how it is collected or shared.

During the panel, ?Legal/Privacy: Big Data, Big Brother, Big Issues,? participants also discussed President Obama?s announcement this week that he will call for a Consumer Privacy Bill of Rights during his upcoming State of the Union speech. A key takeaway is the government is expanding what it considers personal information and that this has significant implications for mobile marketers.

?An interesting trend is that the lines between data protection and privacy are really blurring,? said Joseph Rosenblum, partner and global chair for advertising technology and media law at Reed Smith. ?We lump everything into privacy, but in fact many of the regulations are really targeted not so much at pure privacy but at data protection, the secondary use of information that goes beyond the initial usage.

?Most of the information about you that is gathered, especially on mobile device, is not necessarily private but is becoming a focused in privacy,? he said.

Other panelists included Linda Goldstein, partner at Manatt Phelps & Phillips, and Andrew Lustigman, partner at Olshan Frome Wolosky LLP. The panel was moderated by Mickey Alam Khan, editor in chief of Mobile Marketer and Mobile Commerce Daily. 

An expansive view
When a consumer goes to a supermarket, buys milk and swipes a loyalty card or credit card to pay for it, that information is not private.

However, if that consumer gets a coupon a couple of weeks later from a competing milk brand referencing the earlier purchase and encouraging the recipient to try a new brand, this feels creepy to most consumers.

For government agencies, how consumer data is collected, used and shared is a growing concern because mobile enables a wealth of user data to be collected that can conceivably aggregated to identify someone. This coupled with the fact that a growing number of children have their mobile phones is of particular concern.

?What we all might think is personal private information and what is not is not always aligning with what the government thinks,? said Linda Goldstein, partner at Manatt Phelps & Phillips. ?Their view is really expanding to include any persistent identifiers, not just a name or address.

?Where it is important if you are developing apps, you have to go further,? she said.

?The government is getting so expansive on what it thinks personal information is, you have to dive deep, deep, deep to find what is actually being collected and how that can be matched back to someone.?

Bill of Rights
Ms. Goldstein shared the example of a company that insisted it was not going to collect personal information such as name in a new app it was developing. However, Ms. Goldstein probed deeper and uncovered that the app would be collecting IP address, social handles and profiles.

It is also important for mobile marketers to keep in mind that most of the legal actions taken by the government to date in the mobile space have focused on the failure to honor privacy promises that had been made or a failure to adequately disclose data collection practices.

The proposed Bill of Rights is similar in scope. 

?The Bill of Rights does not look so restrictive in terms of what you can and cannot do,? Ms. Goldstein said. ?It is more about adequate disclosure.?

?For right now, not that much has changed,? she said. ?The challenge is to really understand at every level what data is being collected and how you plan to use that data and disclose to consumers?

Final Take