Category: Advertising


The PII Problem: Privacy and a New Concept of Personally Identifiable Information

My article, The PII Problem: Privacy and a New Concept of Personally Identifiable Information (with Professor Paul Schwartz), is now out in print.   You can download the final published version from SSRN.  Here’s the abstract:

Personally identifiable information (PII) is one of the most central concepts in information privacy regulation. The scope of privacy laws typically turns on whether PII is involved. The basic assumption behind the applicable laws is that if PII is not involved, then there can be no privacy harm. At the same time, there is no uniform definition of PII in information privacy law. Moreover, computer science has shown that in many circumstances non-PII can be linked to individuals, and that de-identified data can be re-identified. PII and non-PII are thus not immutable categories, and there is a risk that information deemed non-PII at one time can be transformed into PII at a later juncture. Due to the malleable nature of what constitutes PII, some commentators have even suggested that PII be abandoned as the mechanism by which to define the boundaries of privacy law.

In this Article, we argue that although the current approaches to PII are flawed, the concept of PII should not be abandoned. We develop a new approach called “PII 2.0,” which accounts for PII’s malleability. Based upon a standard rather than a rule, PII 2.0 utilizes a continuum of risk of identification. PII 2.0 regulates information that relates to either an “identified” or “identifiable” individual, and it establishes different requirements for each category. To illustrate this theory, we use the example of regulating behavioral marketing to adults and children. We show how existing approaches to PII impede the effective regulation of behavioral marketing, and how PII 2.0 would resolve these problems.


CELS VI: Half a CELS is Statistically Better Than No CELS

Northwestern's Stained Glass Windows Made Me Wonder Whether Some Kind of Regression Was Being Proposed

As promised, I’m filing a report from the Sixth Annual Empirical Studies Conference, held 11/4-11/5 at Northwestern Law School.  Several of the attendees at the Conference approached me and remarked on my posts from CELS V, IV, and III. That added pressure, coupled with missing half of the conference due to an unavoidable conflict, has delayed this post substantially.  Apologies!  Next time, I promise to attend from the opening ceremonies until they burn the natural law figure in effigy.  Next year’s conference is at Stanford.  I’ll make a similar offer to the one I’ve made in the past: if the organizing committee pays my way, I promise not only to blog the whole thing, but to praise you unstintingly.  Here’s an example: I didn’t observe a single technical or organization snafu at Northwestern this year.  Kudos to the organizing committee: Bernie Black, Shari Diamond, and Emerson Tiller.

What I saw

I arrived Friday night in time for the poster session.  A few impressions.  Yun-chien Chang’s Tenancy in ‘Anticommons’? A Theoretical and Empirical Analysis of Co-Ownership won “best poster,” but I was drawn to David Lovis-McMahon & N.J. Schweitzer’s Substantive Justice: How the Substantive Law Shapes Perceived Fairness.  Overall, the trend toward professionalization in poster display continues unabated.  Even Ted Eisenberg’s poster was glossy & evidenced some post-production work — Ted’s posters at past sessions were, famously, not as civilized. Gone are the days where you could throw some powerpoint slides onto a board and talk about them over a glass of wine!  That said, I’m skeptical about poster sessions generally.  I would love to hear differently from folks who were there.

On Saturday, bright eyed and caffeinated, I went to a Juries panel, where I got to see three pretty cool papers.  The first, by Mercer/Kadous, was about how juries are likely to react to precise/imprecise legal standards.  (For a previous version, see here.) Though the work was nominally about auditing standards, it seemed generalizable to other kinds of legal rules.  The basic conclusion was that imprecise standards increase the likelihood of plaintiff verdicts, but only when the underlying conduct is conservative but deviates from industry norms.  By contrast, if the underlying conduct is aggressive, jurors return fewer pro-plaintiff verdicts.  Unlike most such projects, the authors permitted a large number of mock juries to deliberate, which added a degree of external validity.  Similarly worth reading was Lee/Waters’ work on jury verdict reporters (bottom line: reporters aren’t systematically pro-plaintiff, as the CW suggests, but they are awfully noise measures of what juries are actually doing).  Finally, Hans/Reyna presented some very interesting work on the “gist” model of jury decisionmaking.

At 11:00, I had to skip a great paper by Daniel Klerman whose title was worth the price of admission alone – the Selection of Thirteenth-Century Disputes for Litigation.  Instead, I went to Law and Psychology III.  There, Kenworthey Bilz presented Crime, Tort, Anger, and Insult, a paper which studies how attribution & perceptions of dignitary loss mark a psychological boundary between crime and tort cases.  Bilz presented several neat experiments in service of her thesis, among them a priming survey- – people primed to think about crimes complete the word “ins-” as “insult,” while people primed to think about torts complete it as “insurance.”  (I think I’ve got that right – – the paper isn’t available online, and I’m drawing on two week old memories.)

At noon, Andrew Gelman gave a fantastic presentation on the visualization of empirical data.  The bottom line: wordles are silly and convey no important information.  Actually, Andrew didn’t say that.  I just thought that coming in.  What Andrew said was something more like “can’t people who produce visually interesting graphs and people who produce graphs that convey information get along?”

Finally, I was the discussant at an Experimental Panel, responding to Brooks/Stremitzer/Tontrup’s Framing Contracts:Why Loss Framing Increases Effort.  Attendees witnessed my ill-fated attempt to reverse the order of my presentation on the fly, leading me to neglect the bread in the praise sandwich.  This was a good teaching moment about academic norms. My substantive reaction to Framing Contracts is that it was hard to know how much the paper connected to real-world contracting behavior, since the kinds of decision tasks that the experimental subjects were asked to perform were stripped of the relational & reciprocal norms that characterize actual deals.

CELS: What I missed

The entire first day!  One of my papers with the cultural cognition project, They Saw a Protest, apparently came off well.  Of course, there was also tons of great stuff not written from within the expanding cultural cognition empire.  Here’s a selection: on lawyer optimism; on public housing, enforcement and race; on probable cause and hindsight judging; and several papers on Iqbal, none of which appear to be online.

What did you see & like?


Scoring Ourselves to Economic Death

In The New York Times, Stephanie Rosenbloom asks readers to “imagine a world in which we are assigned a number that indicates how influential we are.”  That number would help determine our success at getting a job, hotel-room upgrade, break on a service, or free samples at the store.  As Rosenbloom tells us, imagine no more, companies, such as Klout, PeerIndex, and Twitter Grader, are mining our social media activities and assigning us influence scores.  Social scoring is based on our online social network activity, including the number of followers, friends, and the extent to which our online activity gets people moving.  If if you recommend a salon to your social network friends and they follow suit, your good word has two functions.  You’re doing a good thing for your friends and the salon (let’s hope), and now you’re doing good for you.  Because you have inspired people to take action, your influence score may rise.  In the present, people with high scores get preferential treatment by retailers.  More than 2,500 marketers are now using Klout’s data.  Audi will begin offering Facebook users promotions based on their Klout score.  The Las Vegas Palms Hotel and Casino is using Klout data to give highly rated guests an upgrade or tickets to a show.  In the future, those scores could be used by prospective employers, friends, and dates.

On the one hand, this market trend has something important to commend — its visibility.  Consumers can find out their influence scores and work to raise them.  By contrast, the impact of behavioral advertising is often hidden.  We are tracked and scored in databases and have no idea how it shakes out.  Joe Turow’s excellent book Niche Envy explains that consumers know very little about how their data personalizes market transactions.  Some individuals may end up as haves and others as have-nots, but neither group knows the extent of it.  As Turow explains, “our simple corner store is turning into a Marrakech bazaar–except that the merchant has been analyzing our diaries while we negotiate blindfolded, behind a curtain, through a translator.”  On the other hand, the information isn’t perfect and the algorithms secret so people may waste time doing things that they believe will raise their scores but don’t.  But that isn’t really troubling, unless every job or blog post had the effect we hoped it might.  What’s troubling is the trend’s implications for society and culture.  It seems old school to say that people blog, make friends, and engage in online chats to play, experiment, and create culture.  Now, they may feel pressured to do all of these things as a matter of economic necessity.  We may forgo experimentation for product endorsements, and idle chatter for better job prospects.  This makes our children’s choice to engage with social media seem like less of choice than a carefully cultivated necessity.  It also spells far more trouble for people who are already victimized, those who cyber mobs target with lies, threats, technical attacks, and privacy invasions.  They go offline or write under pseudonyms to protect themselves.  We now know that those choices (if we can call it that) cost more economically than they already do aside from the many other costs that my work discusses.  I imagine there’s more to this influence score story but I thought I’d share my initial take.


A Gummy Lawsuit

A man has bad teeth.  He chews Trident Xtra Care gum, which promises that it “Strengthens and Rebuilds Teeth” by “fill[ing] in the tiny crevices where cavities can form and leav[ing] teeth more resistant to plaque acids.”  His teeth remain rotten.  It’s America.  So he sues for deceptive business practices, and seeks to represent a class of gum purchasers.   You name the defenses.


More on Pizza and Puffery

Like Nate, the Domino’s puffery commercial caught my eye.  In addition to his concerns, the commercial prompted me to think about at least two other issues related to the commercial’s effectiveness.

First, given that Domino’s only has a couple of seconds to get across its message, do most viewers really appreciate the reference to puffery?  To be sure, Domino’s loves it so much that they have dedicated a whole site to the “Stop the Puffery” idea and “calling out Papa John’s”.  Moreover, it seems to be garnering a lot of buzz on legal blogs, such as these thoughts on ContractsProf Blog and Above the  Law.  But as those posts reveal, the initial puffery reference stems from an old case between Papa John’s and Pizza Hut where Papa John’s essentially admits that its “Better Ingredients. Better Pizza” slogan is puffery in order to avoid Pizza Hut’s claim that ads using the slogan were false and misleading.   Interestingly, the Fifth Circuit case notes that “Pizza Hut does not appear to contest the truthfulness” of Papa John’s factual assertions that Pizza Hut used frozen dough, made its dough using “whatever comes out of the tap,” and made its sauce from remanufactured tomato paste.  Instead, Pizza Hut suggest that the ingredients make no difference in terms of taste.   In any event, the Fifth Circuit concludes that Papa John’s slogan is non-actionable puffery and thus did not really impact people’s buying decision.  From Domino’s perspective, calling Papa John’s slogan puffery is supposed to get across the idea that the slogan is “NOT FACT”–or in Papa’s John’s words, involves claims about “common sense choice.”  But it is not clear how much, if any, of that gets across in the ad. 

Second, wasn’t it just last month that Domino’s launched an ad strategy based on a mea culpa where company executives not only quoting comments likening Domino’s crust to cardboard and the sauce to ketchup, but also comments like “worst excuse for pizza I ever had,” and “totally devoid of flavor”?  The apology strategy seemed both bold and risky.  Though one could argue that it is only a few steps removed from ads that offer “new and improved” products, except those ads don’t explicitly admit that the old product was relatively worse.  Nevertheless, Domino’s apologetic strategy seems at odds with the attack strategy in these puffery commercials.   Indeed, the apology appears to be aimed at fostering good will and a positive outlook.  Moreover, the apology seems to be at the very least an implicit acknowledgement that Domino’s pizzas (and ingredients) were worse than their competitors.  So the puffery attack seems a bit hard to swallow. 

But in the interest of being honest, I will admit that I have not yet tasted the new and improved Domino’s pizza, and hence can’t really say anything about the pizza. . .just the pizza ad.


Marketing and Kids

Although I tend to prefer less regulation in many cases, the pictures below seem to call for a little more discussion about how products are marketed to kids. Candy in that mimics many of the attributes of adult products such as cigarettes probably makes it easier for a kid to think they ought to try the real thing and maybe soon. As I have noted before, the warning labels on cigarettes in other countries are quite a bit more stark (some simply state in large font “Smoking kills”.

As a trademark point, one might wonder whether an infringement action or maybe a dilution one would work. One might think cigarette makers have entered the cigarette entry market (Anyone remember Joe Camel?). Dilution by blurring may apply too, but a tarnishment claim may be more difficult as I think candy (absent those pesky four out of five dentists) is still seen as a step up from tobacco. All kidding aside, even if one argues that adults can make informed decisions, it seems to me that packaging candy to look quite similar to major cigarette brand packaging is an error. You make the call about these images and what, if anything, should be done.

The ones with cellophane wrapping look even more like a training kit to me.

Candy Cigarettes 2

Candy Cigarettes 3


Are T.V. Programs Killer Apps?

Networks. In my youth, the term was most familiar to me as the word for large, national television stations. NBC was at the bottom of a small heap in the late 1970s. If I recall correctly, Johnny Carson and the Tonight Show supported most of the network in general. Now remember, there were only three networks and some local stations, yet NBC was unable to do well. Then NBC tried a show that I believe many thought would not work or have little success, The Cosby Show. Who knew? That show took off and NBC parlayed The Cosby Show into 20 years of dominance. Family Ties was OK but nothing brilliant. Nonetheless, with Cosby as the anchor, NBC tested and launched series such as Cheers, Friends, and ER with Wings and other decent fillers in between. In a sense NBC seemed to have cross-subsidized its programming on Thursday and even other nights (by launching and then moving series). In addition, that lead allowed NBC to promote all its other programming. Then came CBS which was in the doldrums and it tried a little thing called Survivor. Boom! CBS took off. Many OK, and some not so good shows have done well on CBS. FOX arguably uses American Idol to achieve similar results. NBC struggles so much that some rather good shows are lost and like the proverbial tree they fall but no one hears them.

The analogy is far from perfect (for one I am not certain that T.V. shows require large numbers to be useful then again they seem to do well in part because one likes to be able to talk about shows around the so-called water cooler), but I wonder if Yahoo!, AOL, Google, MSN, Facebook, and Twitter are in some ways similar to the T.V. networks. One killer app and the site grabs a ton of people who stick and may use other products from the network. Users can click away and can use the services in a simultaneous way in that one can work with one service at time or have multiple services running but not miss programming as was the case before the VCR. There are many open questions in this arena. For one, how easily can one switch from one service to another? In addition, are there similar problems regarding limited access (i.e., T.V. and cable can carry only so many channels but the Internet has greater capacity (though depending on the status of the network not as unlimited as some might argue)? A key issue in my mind is the problem of knowing that a good service or program exists. The Internet appears better than T.V. at letting users quickly decide what they like, and the information seems to spread rather well. Still, I am sure there are great services that I am missing (a recent one that someone mentioned to me was Dropbox). One often doesn’t know what is good until those pesky advertisers and marketers push information. My recent research has been looking into the way trademarks as brands have functioned on several levels, but one thing that jumps out is that brands are two-way information devices. Advertising is a major piece of that puzzle in one direction; the Internet and commentary is a major piece of the puzzle in the other direction (trademark law handles this idea poorly). Ironically, just as T.V. and print cry out because ads are being skipped, the Internet steps in and seems to deliver better returns on ads. The new difference is that in some cases those who pay for and create the content that was subsidized by ads are not seeing that money. In other words, as Paul Duguid has shown in his work and I have found in my research, early brands can be understood as having a big role in supply chains; we may need to think of modern networks in much the same way. There are many details and differences to address in the Internet arena, but I think these ideas will be part of how we sort out some of the online competition issues in play today.


IP Law and the Presidential Sneakers…

President Obama is likely the first true “celebrity president”, at least the first in our time, in the sense that people see opportunities for making money from his persona and likeness.  Early on in the presidency, his office made some remarks to the extent that they were working on a policy asking people to be respectful of the president and his family in restraining some of these commercial impulses.  Of course, all of this raises the fine line between free speech and personality rights – a topic much debated on the cyberprof listserve in the early days of this presidency.

In this vein, I couldn’t resist posting an ad I came across last night that squarely raises these legal issues.  A company that appears to be in Michigan (although they do not give their postal address, but do require Michigan residents to pay sales tax on purchases from their website) has set up an “Obama shoes” website.  On this website, you can purchase Obama sneakers, backpacks, and basketballs.

The website uses video clips from one of Obama’s speeches and refers to itself as selling merchandise that is inspirational to young folks and that is intended to commemorate Obama’s inauguration. Thus, it obviously intends to juxtapose free speech interests in the inauguration against the commercial use of Obama’s name and likeness.

There are some other interesting little sidenotes about this business venture that suggest the people who set it up sought at least some legal advice before doing so.

1. They used the domain name “” presumably either because they couldn’t get a “better” domain name or because they wanted to avoid claims under the Uniform Domain Name Dispute Resolution Policy. They could argue that even if Obama’s name operates as a TM, they have not used his actual name in the domain name, but have added “shoes” to the end of it so no one will think it’s an authorized Obama website.

2. They include a disclaimer on their webpage to the effect that: “ is a private entity and makes no claim of affiliation or endorsement by President Barack Obama or his campaign for office.”

3. Interestingly, there is also a disclaimer on their FAQ page about the design of the sneakers themselves. “Q. Why does [sic] the shoes look like Nike Air Force Ones (AF1) and the Jordan Brand?
A. These design is [sic] been proven to be commonly preferred by most Adults & Children (black or white).” Now, I personally don’t know anything about sneaker designs, but I assume this is intended as a preemptive strike to ward of claims in trademark, trade dress, and/or design patent with respect to the actual design of the shoes.

So, interesting business model…
Legitimate free speech? Or intellectual property law infringement as far as they eye can see?


The Blogosphere Running on Fumes?

tn_xlarge_Pinto.jpgGandelman’s roundup of reactions to Pajamas Media’s shuttering of its blogging network is worth checking out. Of the various reactions I’ve seen, from anger at incompetence, to anger that PJM wasn’t right-wing enough, I think the best is by Dennis the Peasant, who republished an old post about how to make money online:

The mistake I had made was assuming that some good household data was enough information to get an advertiser to act. It isn’t. What will convince advertisers to advertise on blogs is convincing data that the decision makers for their products are at those blogs. Yeah, high household income is something advertisers like, but if it isn’t coupled with access to the decision maker they have no reason to spend with you. Their job is to convince the decision maker to buy their product. If you don’t deliver that person, they can’t do their job. If they can’t do their job, they are going move on from you to someone who will enable them do their job.

So think about this: What kind of advertising do you see on the Sunday morning talk shows? What kind of advertising do you see in the politically-oriented magazines (as opposed to news magazines)? See much in the way of advertising for computers, cell phones, video games or cameras?

This strikes me as intuitively quite right, although I’ve previously written that advertising on some blogs might create a beneficial exposure effect. (Perhaps this argument is too self-serving to be believed.)

Does the failure of political blogging to make money have any implications for the legal blogosphere? I doubt it, because the legal blogosphere, with one exception I can think of, is basically a nonprofit enterprise.

The Caron Blog Empire has a deal with Thompson-West that seems to fit with the theory, as law professors are the primary decision makers for casebooks. (Which, of course, explains why such books are routinely overpriced). But I doubt that the law professor blog network is producing a rush of revenue. Everyone else is subsidized, either directly by their underlying practices or indirectly by their law schools. (Even Volokh appears not to be currently running ads).

The only exception is Above the Law. Today they are running credit-check & job search ads. Appropriate.

(Image Source. A Ford Pinto. Go buy it, if you are feeling brave.)