Yesterday, I had the privilege of taking part in a “Business and Technology Roundtable” with Congressman Ted Poe. The event was put on by SEMPO, HiMA and Google and was attended by marketing firms, well-known Houston brands and small business owners. The focus of the conversation centered on online marketing.
As the only lawyer in the room, I had to play devil’s advocate and take the position of the pro-privacy crowd and asked why do we need behavioral online tracking. My goal was to arm the Congressmen with some information to fight Do Not Track legislation if that was the position the marketers in the group wanted to him to take. Most everyone said they did the first line analytics only and did not engage in continuous tracking, so the dominant response was that consumers could turn off the cookies and opt out. I did not have time to ask if anyone in the room could tell me exactly how to do this, let alone how I would explain this to my retired mother who just started emailing five years ago.
To the participants’ credit, I don’t think passage of Do Not Track legislation would impact any of their marketing strategies. In case the Congressman reads this or if you are curious, you can read my five-part series on Do Not Track beginning here, here, here, here and here.
There are alarmists on both sides of the issue. I have been advocating for the industry to self regulate for some time to no avail. Telling people they won’t get their Facebook for free anymore (not reality) or they will see irrelevant banner ads (not a disincentive for consumers) isn’t going to cut it when more and more people are getting the creepy feeling from banner ads that follow them.
This was all a prologue to my main point. We only had an hour and with two minutes to go there was an open question about what we would like him to do for us as our Congressmen. With the limited time, I hit patent reform because it stifles innovation and a start-up community that could be the spark plug for employment and our economy. He invited us to send him any further comments and so I took him up on the offer with this letter. Congressman Poe Letter
February 8, 2013
The Honorable Ted Poe
1801 Kingwood Drive, Suite 240
Kingwood, TX 77339
Re: Business and Technology Roundtable Follow-Up
To The Honorable Ted Poe:
Thank you for taking the time to learn more about the Houston technology and internet marketing scene at the roundtable lunch yesterday. At the end of the discussion, you asked about federal legislative issues important to us. I briefly mentioned patent reform in my limited time and therefore won’t rehash those comments again. You also invited us to provide you with any additional concerns we wished to share with you in writing. I am taking you up on this offer and offer a few additional matters. Although written on firm letterhead, the viewpoints are my own and not reflective of the law firm’s or any of its clients.
Communications Decency Act Reform
The Communications Decency Act, and specifically Section 230 (47 U.S.C. §230(c)) which provides immunity for website operators for defamation-based claims, has fostered innovation and prevented questionable litigation from killing web-based forums. Like many good laws, however, it has spawned business of questionable utility not worthy of Congressionally-created protections. I am speaking of websites that have a sole purpose to solicit gossip, defamation and shaming. I’ve had one too many conversations with fathers whose daughters have been slandered on sites riddled with deplorable commentary. I’ve had to explain to them how filing a suit against the website is an uphill battle because of Section 230. The only option is often to engage in multi-layered litigation to try and unmask the anonymous cowards who provide the content on these sites who usually have no money to pay for their misdeeds. Meanwhile, the purveyors of these sites try to attract eyeballs by pushing salacious details about private individuals that translate into advertising dollars. Many of these same sites offer “reputation restoration” services that masks as extortion to have the insulting materials removed.
The CDA works for sites like Google, Facebook and even has a place for reputable consumer review sites despite the gripes of many businesses. Section 230’s immunity could be curtailed for any sites that exist primarily to solicit defamatory, offensive or personal information about private citizens. This would not create additional regulations or burdens for new businesses. It would simply take away Congressionally-created protections for the undeserving. Obviously, the carve out would have to be carefully drafted and narrowly tailored to only address the truly bad actors. The courts appear to want carve out such an extension, but are facing difficulty with the current language in Sections 230. See, e.g., Jones v. Dirty World Entertainment Recordings, LLC, 2:09-cv-00219-WOB (E.D. Ky.) and Hare v. Richie, Case No. 11-CV-3488 (D.C. Md.).
As you know, “Big Data” is big business. The Federal Government controls as much data as anyone. There is an enterprising start-up community that can make use of that data to help address inefficiencies in the Government and address societal ills. The website www.data.gov is a step in the right direction. Invite the start-up community to hackathons and other events that will encourage them to make use of the treasure trove of government data that will benefit the government and spur economic growth with new business ideas. You will find the young start-up community hungry for opportunities to make use of the available government data for good that could also create private enterprise. Imagine if you gave the tech world’s brightest an incentive to make the most of the government’s data like the private sector has done with search.
Texas Governor Perry may be focused on competing with California for entrepreneurs. When it comes to educated and creative talent, Harris County is more likely competing with Austin than Silicon Valley. Houston does have a budding technology start-up community. While we may not have the natural amenities Austin or San Francisco can offer, we have a business community ripe for innovation. Two of the biggest issues facing the country are energy independence and a sustainable health care system. So, why isn’t Houston a city that attracts a more robust start-up community to work with these well-developed industries?
Although not well-known, there is an organic start-up community tackling these and other issues. Houston, however, has an image problem – both as it relates to talent and venture capital. While the onus to attract talent and venture capital is more on local and state government, there are certain projects worthy of whatever federal support may be available. Initiatives that make Houston a more livable and attractive city such as light rail, mass transit, space research and technology and other related projects will attract the creative class. While “spending” is toxic these days, targeted investments in Houston’ infrastructure will attract the private enterprise that will make Houston even a greater place to live.
Make no mistake, Houston has a vibrant community with the likes of Start-Up Houston, the Rice Technical Alliance, the Houston Technology Center’s venture with NASA, Surge and too many individuals and organic co-working spaces and groups promoting and encouraging growth to name. The concern is that once companies reach a certain level of success, they have to go to Austin or California to attract the necessary talent or capital. Certain investments in the City of Houston can keep and attract the necessary talent and capital to stay right here. I would encourage you consider another roundtable discussion with some of the start-up ambassadors for the region to learn more.
Bridging the Digital Divide
Enhancing Houston’s position in the region includes efforts to bridge the digital divide. Is our current education system producing a technologically-savvy workforce? HISD is considering providing lap tops to every student. There are civic-minded people in Houston willing to provide training and mentoring for young students so they are ready for today’s economy. Programs like these could use federal support. Having a workforce ready for today’s jobs will attract and keep new companies in Houston.
For the most part, when it comes to technology and the internet, the federal government has done the right thing – primarily stayed out of the way which has kept the cost of entry very low and allowed for innovation. Your position on SOPA, for example, is spot on – any new “regulations” need to be carefully considered. Before any new regulation gets added, let’s be sure the cure is not worse than the ill any legislation aims to address. With that said, there are some things the Federal Government can do to help the start-up community, further foster innovation lifting employment and the economy. Thank you for your time yesterday and for inviting further comments such as these.