Privacy, Data Security and Digital Media

Keller and Heckman LLP is on the cutting-edge of today's most exciting ways to communicate and do business: the Internet and mobile media.  Our regulatory and business expertise enables us to assist clients in promoting their brands and generating revenues using digital media, as well as advocating a sensible legal framework governing privacy, data security and digital commerce to policymakers around the world.  We help clients:

  • Establish, advertise and maintain globally accessible web sites that meet their business-to-business (B2B) and business-to-consumer (B2C) objectives, while  protecting the privacy and managing the security of data entrusted to them;
  • Manage privacy and security aspects of websites and mobile apps;
  • Comply with laws and self-regulatory guidelines regarding the use of “cookies” and other technologies and interest-based or online behavioral advertising;
  • Handle relationships with advertising, telecommunications and online service providers, and business partners;
  • Develop policies to safeguard data and respond to breaches when they occur;
  • Evaluate and comply with evolving cybersecurity laws and best practices; and
  • Protect valuable intellectual property. 

Our privacy, data security and digital media work includes public policy advocacy, counseling, assisting with transactions, and enforcement and litigation.

Public Policy Advocacy

Central to our ability to assist clients is our ongoing involvement in policy debates about how the Internet, mobile media, apps, interactive television and other platforms should be governed.  Differing privacy, advertising, free speech, consumer protection, product liability, libel, and defamation rules around the world make jurisdiction and venue two major concerns for regulators, businesses and consumers alike.  We recommend practical solutions and support self-regulation to maintain flexibility for industry, while responding to concerns of regulators and consumer advocates.  Our attorneys represent clients in proceedings before the U.S. Federal Trade Commission (FTC), Federal Communications Commission (FCC) and Department of Commerce (DOC).  We have participated in agency workshops on issues related to privacy, advertising, content issues and advertising literacy.  We also closely monitor U.S. state privacy and security laws, help clients devise national compliance strategies, and assist with data breach notifications.  In the international arena, we are active in developments related to best practices in advertising and privacy self-regulation through the International Chamber of Commerce (ICC) Marketing and Advertising Commission.

Keller and Heckman has expertise in products and issues affecting children - from children's advertising to children's privacy and safety.  Concern about children has driven one of the most significant regulatory initiatives affecting websites and online services: The Children's Online Privacy Protection Act (COPPA).  We help clients structure their web offerings to meet the FTC’s regulations implementing COPPA, and have represented clients in all major COPPA rulemaking proceedings.

Counseling

Our attorneys counsel clients on privacy, data security and data breach notification compliance issues, as well as on digital advertising, marketing, sweepstakes, contest and promotion matters.  In particular, we help clients establish and implement internal digital privacy, data security and breach notification policies, and manage trans-border data flow.  We also assist clients in developing compliance strategies to participate in self-regulatory programs for online behavioral advertising (OBA) or interest-based advertising (IBA).  In addition, our attorneys advise clients on online disclosures and disclaimers, the application of the FTC’s endorsement and testimonial guidelines to digital advertising, user agreements, and rules for blogs, chat rooms, and other social media.  Our in-depth familiarity with the privacy and data security legal and policy landscape enables us to guide our clients in establishing best practices and common sense solutions for managing data, as well as handling user-generated content and managing social media.  We also help clients address intellectual property violations in the digital space, develop copyright take-down procedures, and challenge instances of misuse of trademarks or copyrighted materials.

Promotions are the lifeblood of many of our clients’ B2C activities.  Keller and Heckman attorneys assist clients in structuring online and mobile contests, sweepstakes and promotions, including one offering coupons and gift cards.  We advise clients on complying with state laws and, where applicable, commercial coventurer requirements, as well as the CAN SPAM Act and telemarketing laws.  Our thorough understanding of COPPA and other privacy guidelines and laws allows us to help clients offer legally appropriate online contests and promotions to children under 13, as well as to adults and teens.

Our privacy, data security and digital media clients benefit from our inter-disciplinary approach.  Legal and scientific experts from our product safety, food and drug and pesticide practice groups often work with our privacy attorneys to advise clients on appropriate health, safety, environmental or other claims for products such as foods, drugs, dietary supplements, resins, telecommunications equipment, machinery, chemicals, electronics or toys.  Working with our employment and labor practice groups, we assist clients in developing policies on employee privacy and security, the use of social media by employees, digital and other monitoring and surveillance tools in the workplace, and employer-provided devices and networks.  We also counsel clients on avoiding antitrust pitfalls of B2B e-commerce ventures. 

Transactions

The digital media environment has spawned a host of agreements between clients and various service providers and business partners.  We advise clients on advertising and promotional agreements, cloud computing agreements, outsourcing agreements, and digital service provider agreements.  We also develop and negotiate web hosting, web development, e-commerce, and retail and resale Internet access agreements. 

Enforcement and Litigation

Where the need arises, Keller and Heckman attorneys assist clients in responding to administrative enforcement actions, with disputes before self-regulatory bodies, and in arbitrations and mediations, as well as with litigation.  With the growth of lawsuits - including class action lawsuits - and alleged privacy and security violations, insurers are taking a close look at coverage.  Our insurance coverage and litigation practice groups assist in evaluating coverage and defending clients in court.  We work to assure that privacy considerations are addressed in discovery.  We also are involved as neutrals in Internet disputes and as arbitrators and mediators.

Representative Matters

  • Represent national trade association in the Children's Online Privacy Protection Act (COPPA) and other privacy rulemaking proceedings.
  • Advise international food, packaged goods, publishing, oil and gas, and retail clients on state data breach notification obligations, and privacy and security policies and compliance.
  • Successfully defended online retailer in FTC investigation of CAN SPAM violation and children's product companies in COPPA investigations.  In each case the investigations were closed with no action.
  • Established social media policies for a national grocery retailer, national trade associations and consumer products companies.
  • Assist national consumer product companies in implementing online behavioral advertising self-regulatory compliance programs.
  • Develop privacy policies and website policies for diverse businesses and associations.
  • Advise international food and consumer product companies on transborder data flow adequacy mechanisms and draft adequacy policies and instruments.
  • Successfully obtained take-down of infringing videos from social media sites.
  • Serve as outside counsel to a national association implementing an interest-based advertising self-regulatory program.

For more information please contact privacy@khlaw.com or visit www.khlaw.com.

 

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