Referenced: Episode 4 – Adverteering, Full Article.

00;00;01;14 – 00;00;21;21
DAVID:
Right, Troy. Well, here we are. We’re doing this consumer data podcast. Thank you for being here. It’s an honor to have you, and I really appreciate you being available. I guess to get things started, maybe just tell me your background, what you’ve been up to for the past little while, and then I can tell people why I reached out to you and go from there.

00;00;22;12 – 00;00;42;20
TROY:
Yeah, sounds good. Thanks, DAVID:. And thanks for having me on. I appreciate the opportunity to speak to this a little bit. I’m a lawyer. I’m a consumer protection lawyer located in Ohio. Most of my work is in the finance, mortgage, real estate, and finance-related areas, although I do a fair amount and I have done a fair amount with general consumer protection.

00;00;43;05 – 00;01;01;16
TROY:
My background is in the mortgage business before I went to law school, and then when I went to law school, it was about learning everything I could about litigation and consumer protection and then coming out into practice in 2010. It’s all been about consumer protection, and some business litigation as well. But for the most part, it’s how consumers are protected.

00;01;01;28 – 00;02;28;20
DAVID:
So it’s very interesting. And that’s pretty much exactly why I reached out to you. I’m fascinated by well, first of all, just the acceleration of technology that is allowing misuse and use of consumers’ data. And to me, there are three primary, I guess, stakeholders that are involved in that. And why I reach out to you is because I wanted to hear it from your perspective, like how it’s all been going.

And so the whole podcast and the series is going to change and become whatever it needs to become to address the right issues. And so talking to you and then deciding where to go from there, we’ll change the topics that we end up discussing. But for me, I’m like personally just really curious how it all fits together, the landscape from a law perspective, but also from just the everyday Joe kind of perspective.

And also like how do businesses react to this? Because they’re going to be primarily driving a lot of the technology that is used to access data. That all being said, I’m ready to jump off into this because I’m excited to hear your whole take on everything. So let’s just start from the very beginning sure. Could you try to, I know it’s impossible to get it all, but could you try to paint a picture for me and then everyone else as well?

Just the history of consumer data. And then also just from your perspective from the law, how it’s gotten to where it’s at and like how did it all start? Why do we even call it consumer data protection?

00;02;28;28 – 00;05;30;29
TROY:
Well, good questions. It actually all started, I would say in 1805. There’s this [laugh] and I’ll tell you why in just a second. But I think with this with data, you really have two areas of the law coming together and butting heads or controlling data in general, and that’s property law and contract law. The question really is about first I’d say property; What is property? What is the data who does it belong to? How is it created? When does the transfer from one person to another and who ultimately owns it?

Ultimately, the question is who gets to make money on it, right? I mean, it all comes down to money. But outside of that, the question is, is property 1805 there’s this case Pearson V Post that all law students just about every law student in the United States will study in property law. And it’s this concept this guy, Post, is out with a hunting party and he sees a fox and they start chasing the fox. And the hounds and all that are chasing after this fox, and this other gentleman Pearson sees the fox he says he doesn’t know about the hunting party, but he sees it and he promptly goes over, kills it, takes it and
keeps it and then posts sues Pearson claiming that he deserves the money to the fox, you know, the hide and all that. And it ends up in court and it goes originally Post wins. The lower court says well because he was hunting the animal and because he was involved with that process, he exerted property rights. He had property rights over that fox at that point in time, but it gets appealed.

And then Pearson ultimately wins because the court finds that possession of that thing, possession of property doesn’t begin until you have some type of control over it. The phrasing they use is depriving it of its natural liberty. So that begins this concept in earnest with American jurisprudence, with property law over what is property and when does somebody get ownership of it.

Now, property. And then later on property law, you learn about the bundle of sticks and that is somebody has when it comes to the property, you have this bundle of sticks associated with it. Each stick represents a different kind of interest within the property, and you can transfer one stick out of that bundle and not the rest of it, as in property law and contract law can somewhat govern that.

So the question with privacy, that is what are the bundles of the sticks as far as the information’s concerned that are contained within it and who has the right to own it? Who has the right to transfer it? So the entire area of privacy law, and in the challenges that we’re having over it really comes down to the technology that exists today in creating so much potential controllable property and who has it, who gets it and who gets the profit from it are really the questions that arise from it.

00;05;31;13 – 00;05;43;18
DAVID::
Excellent. That’s very helpful. So back to the fox was the reason, I think you have said that it had its own liberty because it was a living thing. Is that was the key distinction that Pearson won was that right?

00;05;43;29 – 00;06;00;07
TROY:
Pearson deprived of its natural liberty because he killed it. Yeah, he got possession. The fox did initially have its own property rights at that point. In time because it’s a feral animal. And in fact, the court actually talks about that. So it’s a good question. Actually, the court goes into that.

00;06;00;12 – 00;06;14;01
DAVID::
Oh, that’s fascinating. So like if it were something non-living, would that have fallen under the same category? So like a tree, would it? Pearson had cut down posts tree instead of killing a fox on his property. Now, how would that have been treated?

00;06;14;04 – 00;07;16;29
TROY:
At that point in time? Whoever owns the land under the tree would have possessory control over that tree. So if it got cut down by somebody else and fell on somebody else’s property, it would probably still be the owner of the land. Now, interestingly, however, if you have a neighbor’s tree that is over arching onto your land, even if it doesn’t actually touch the ground but over your property line, you have the right to cut it that off.

You can look straight up and saw it all off and not be liable to the other person. And one of the next cases from property law, this is like 13 years, 14 years ago for me. But there’s a story about a whale and there’s whaling operation and they have the harpoons and they this one ship harpoons the whale, but they don’t capture it.

It sinks to the bottom, it dies, it floats back up, ends up on shore and somebody else gets a hold of it. And the question then is who has possession of it? Was the liberty deprived at the point that it died? With the harpoon or on the shore? I think the shore people when that when if memory serves for that long ago.

00;07;16;29 – 00;07;43;14
DAVID::
Interesting. OK, so I’m glad we have these illustrations because that’s ultimately kind of how when I’ve been thinking about this, like it came down to sort of like these really obscure kind of contextual gray area thought processes that you kind of have to put yourself in hypothetically. And so I’m glad we’re covering those at first. But I want to return to something you brought up too, which was the bundle of sticks. So if we can return to that and maybe just break down that metaphor a bit.

00;07;43;29 – 00;09;06;11
TROY:
Sure. I think I’ll go a little broader and say that I don’t think there’s really any dispute that this property does exist. Right? I mean, that is captured, that it exists, right? Companies capture it and they want to hold on to it because they make money on it. So not only exists, but there’s actual value to it. So right off the chute, it gets into this area of property law by virtue of its existence, by virtue of what’s being collected.

Once you know it exists, then you have what how is it defined? Is it personal information? My name address, Social Security if it’s confidential information, Social Security number, date of birth. Is it my shopping patterns? What I actually buy? Is it what I am searching for on the Internet? Is it what I’m looking at? Social media and even where I’m going, GP’s related, you know, where I am and who I am near all those different things are levels or sticks.

I would say with respect to privacy, the thought is or the questions are how much of it can be collected within each one of these particular areas. We talked about who’s owning it, how is it transferred, does it expire, do you have a right to delete it? Do you have the right to request to be deleted? Do you have the right to say, I don’t want you to collect this before somebody actually begins collecting it?
Those are all the questions that I think come down to that bundle.

00;09;06;22 – 00;09;51;29
DAVID::
That’s really good. I mean, that’s exactly what I wonder about. I mean, I think I have this natural inclination to protect things that are mine for some reason. Maybe it’s a territorial thing that I, you know, we all have as humans. And so that’s something I, I think I’ve realized that I have that. And I realized that when those kooky banners pop up on a website that I’m thinking, wow, what what is this like?

What am I agreeing to? I don’t even know. But I want to, I do want to back up again because I feel like there is a distinction also between privacy and why we need to establish property. Like, I want to understand why do we need to establish property rights as well to understand why we need it to be private.
And then I guess a follow on question to that is do we have rights to be private? Is that something we actually do have rights for?

00;09;52;08 – 00;10;45;231
TROY:
Yes, you do. There’s two ways of going about, again, rights to privacy one is with government. So when it comes to the government, the Constitution, the Supreme Court has laid out that is a fundamental right to privacy. So government can’t intrude upon that. They can’t survey you or, you know, set up surveillance to survey innocent people. You have a fundamental right in the United States for that.

You also have a private right with that. It is not covered by the Constitution, but develop through common law. And that’s your invasion of privacy is a claim, is a tort where if somebody invades your privacy, you can bring an action against them. Usually that’s in the context of either appropriation of somebody’s likeness like a celebrity or something, using that to promote a product.
They can be using somebody’s likeness or there to actually for commercial gain.

00;10;46;03 – 00;10;47;26
DAVID::
Is that sort of like copyright law?

00;10;47;27 – 00;11;28;19
TROY:
Actually, copyright law is a whole other area as well. So it can be covered under copyright law. But intellectual property law, but that’s a little bit different. animal. Privacy, invasion of privacy is more encompassing, includes like defamation and false light where you’re making public statements about somebody in a false light. That’s a common-law tort. IP, intellectual property, would deal more with specific; items specific trademarks, secret processes and that kind of thing.
So it can include somebody’s image, certainly. But it deals more with very specific kind of things. Yeah. So you do have a right to privacy.

00;11;28;20 – 00;11;52;24
DAVID::
And so is that based in you establish the law side of it, how it’s based on the court had ruled that you have a right to privacy through I guess various cases that were ruled on however long ago those were established. But with the decisions, did they come down to the fact that we have the right to it’s considered property?

Is that the same or are we in the same category of law or is it a different column? You know what I mean?

00;11;52;28 – 00;12;00;22
TROY:
You know, that’s a very good question. Invasion of privacy is a tort, so it’s a different area of law, torts.

00;12;01;10 – 00;12;02;28
DAVID::
Yes. Maybe I don’t understand torts fully.

00;12;02;28 – 00;12;20;14
TROY:
Yeah, torts are negligence, you know, car accidents, assault, battery from a civil side. Those things are individual harm. So it comes out of that. But I guess you could say in a sense that it is also is created from property.

00;12;20;26 – 00;12;34;04
DAVID::
So like what I’m going for here is like, in the Constitution, and I’m not as familiar with it as I should be, but I just don’t remember reading something that says you have the right to privacy, at least that not that explicitly. Am I wrong on that? Or is that.

00;12;34;07 – 00;12;40;07
TROY:
You’re going to make me look up the the the article while we’re here. Is that four, six or one. It’s up there.

00;12;40;14 – 00;12;41;21
DAVID::
But it’s in there, I guess.

00;12;41;27 – 00;12;52;15
TROY:
Yeah. The Supreme Court has said yeah you have the right to due process and unnecessarily search and seizure. I’m going to get the exact terminology.

00;12;52;15 – 00;12;59;05
DAVID::
Yeah, I can’t wait because this is something I’ve been I’ve been needing to have in my head regardless. [laughs]

00;13;00;05 – 00;13;18;22
TROY:
Well, while we’re looking at that, you mentioned the privacy rights as a tort. And actually one of the ways that it’s phrased is intrusion on solitude or seclusion causing mental suffering. So if you think about your rights as a human being in they’re intruding on it, then we call it property.

00;13;18;28 – 00;13;36;13
DAVID::
I guess the suffering part is what catches my ear there because I mean, that’s a cost to the person, right? The disturbance or the suffering, I guess you would call that damages, right? In law. It’d be like you caused damages. And that’s how you would sue the person, I guess. Am I off on the right on the thinking there?

00;13;36;13 – 00;13;51;25
TROY:
Technically it’s injury. But yeah, you’re right. That’s how you get damages. You have to have an injury and that injury can be emotional or mental in nature. The value of that is to what the jury assigned to it or a judge spinning out.

00;13;51;27 – 00;14;27;17
DAVID::
OK. Well, I want to switch gears here. We’ve gone through some good historical context, which I think is important, especially for me, because I, unlike you, don’t spend all my time thinking about like the different factors from a law perspective. I do wonder about them, but I don’t have the expertise, I guess you could say, to look at it.

So what I’m curious about switching gears here to is day to day and your life and your current roles and what you’ve been working on, how does this come to play out? Is there like a rule book for this? Is there some general guideline like how do we navigate this these days?

00;14;28;24 – 00;15;18;03
TROY:
Well, from my day to day, I’m predominantly a litigation lawyer. So I think in terms of causes, of action, of claims that are available against entities or other individuals that are cognizable, recognized through the court system. So for me, privacy data privacy comes in the form of statutory statutes a little bit. Yeah. Statutes, each state has a statute.

There are some federal statutes that govern privacy related issues. I think in terms of the Fair Credit Reporting Act, when it comes to your credit reports and making sure that those are accurate, that’s a sort of a form of data control, data privacy, if you will. I deal a lot with that statute. Each state, there are different states. We can sort of get into that a little bit, if you’d like.

00;15;18;04 – 00;15;19;16
DAVID::
Yeah. Yeah, I would.

00;15;19;04 – 00;15;58;13
TROY:
Yeah, that’s sort of the yeah, the universe of what I work on it. And then there are policy related people who think in terms of how you protect it, you know, how we’re going to structure our data privacy rights. The European Union with their GDPR is a good example of that. Interestingly there, privacy specifically a fundamental right that European citizens get and are recognized.

And to answer your earlier question, it’s the Fourth Amendment. I think that’s where the Supreme Court found the right to privacy. Its Fourth Amendment protects citizens from unreasonable search and seizure. So they’re reading that as privacy.

00;15;58;13 – 00;16;42;02
DAVID::
Oh, okay. I mean, I knew that one, but I didn’t realize that was, uh privacy. OK, very cool. So essentially, it sounds like what’s happening now these days is there’s various regulatory bodies such as the one in Europe who’s come up with GDPR. I know Canada has some around spam specifically. I don’t know if they have like a detailed customer data platform.

I’m sure there’s organizations there that had that up that are probably nonprofit. There’s probably all sorts of organizations floating around doing similar sort of discussions around this topic. So I guess what I’m interested in is all that being said, where are we going to go from here? Like you mentioned, like the credit scores. Is that something you work a lot in day to day? I think you did say that.

00;16;42;14 – 00;18;02;20
TROY:
Yeah, yeah, yeah, yeah. Credit reports. Yeah. Fair credit reporting is definitely an area. You know, there’s multiple different levels of all this, which makes it almost a little bit more confusing. Financial institutions, United States, the Gramm-Leach-Bliley Act protects people’s personal financial information. You’ve got telecom related issues. You mentioned email. In the United States, the Can-spam Act, there’s a telephone Consumer Protection Act that gets into that .

Intruding on your personal, private time, you know, your dinner time, and whether you can get calls from automated dialing systems or a prerecorded voices. There’s that law that applies to cell phones. You know, whether or not businesses are allowed to intrude on your cell phone. I’ve done a lot of litigation in that particular area over the past, and that’s that’s really fascinating. And the issue there is at first was the phone call made with a prohibited system.

And then you get into, well, did the individual provide their cell phone number to the business? And then you get into, well did providing that cell phone number to the business constitute a consent to be called, consent to violate their privacy, if you will, or use their cell phone. And you have to line all those things up in order to prevail on one of those kinds of claims.

But there are children’s privacy laws, we’ve got health care and HIPAA.

00;18;03;00 – 00;18;06;05
DAVID::
I mean, I love the term “sharenting”. Have you heard this before?

00;18;06;21 – 00;18;07;12
TROY:
No, no. What’s that?

00;18;07;12 – 00;18;30;20
DAVID::
It’s when parents are really excited to share their kids moments on all the social media apps, which I mean, it’s great because I can see my nieces and catch up with what they’re doing all the time without having to be there. But at the same time, you’re like, are they going to appreciate this, you know at 15? Like mom, why is this on my Facebook?

Like it’s out there and it’s probably out there forever at this point, right?

00;18;31;00 – 00;19;07;06
TROY:
Yeah. Yeah, you’re probably right. I mean, that’s one of the things the, the European Union is is sort of put the kibosh on a little bit. One, for people to be able to delete data. California’s code does that as well. But also you mentioned, you know, third parties. Your niece, you know, you’re not the guardian of your niece. That’s your brother’s or sister’s child.

Can you place their image on your Facebook page, you know, without their consent? Answer’s probably not. I mean, if they’re not care, they, you know, acquiescent and waive their ability to say anything to you, they probably don’t have any damages. But that’s sort of you know, the world of the law.

00;19;07;17 – 00;20;24;19
DAVID::
Good. Well, I’m glad there are people thinking about it because it bothers me a little bit. Not like it bothers me because as a marketer, I know… I know at least enough to know that a lot of that’s recorded. And from a technical perspective, I also know that it’s really hard to keep track of data. Like you have a database especially if it’s an older one that’s that was built custom and there were some guy that built it for your company back in 2008 and he’s gone.

And so whoever took it over doesn’t really know all the ins and outs. Maybe there’s a whole table dedicated to some piece of data that was stored there at one point, and no one knows why it’s there anymore. And that could have anything emails, names, phone numbers, pictures. Right? So it’s really like in my sense of the scope of it, it’s just sort of this more of a negligence piece to it that could in and of itself snowball and get out of control, at least for a certain person.

I guess the flip side of that, at least we change our emails, like if there is a new email client like Gmail, you probably deleted your EarthLink or your Juno or your old school emails and then you got the new ones. Right? Anyways, so all I have to say is we’re in a crazy world and technology is changing really fast.
And you mentioned people may be having some sort of right to delete. Have you?

00;20;25;05 – 00;22;23;12
TROY:
There certainly are in Europe and California allows right to delete. I think there’s some other states. I think Virginia and Colorado have something along those lines also. But and then what you end up happening is, at least from a major corporate standpoint, if you do business all over the United States, you’re not going to have a bunch of different policies.

You’re probably going to find and use the most restrictive one. If that’s California, then your policies are probably going to comply with that to allow people to actually delete their data. But I think what you’re talking about really is this first go at this. Which is what is all the data? You know, what is it? You know, what nebulous concepts rights do we have to this information? And it’s almost a little bit more concerning when we talk about this hodgepodge of data because you’re right, it’s a hodgepodge.

But then the question is, how do you make sense of it? How do you use it? You know, and I have the same kind of data problem, right? I have old data and some of it, I use some of it. So how do bigger organizations do that? It’s AI it’s all AI. You know, Facebook and even Google and everyday large data compilers.

And that’s sort of concerning because then you even take the humanity associated with people and data out of it to where it’s just being automatically churned and burned in the background. And really only those very, very large organizations with a lot of resources. That means money, it means political capital. It means that the ability to communicate and market concepts and ideas. Look at what Facebook’s doing with its marketing effort to say we want data loss and gain, like, OK, you know, that’s great.

What does that actually mean for you? You know, I know it’s not going to blow your business up or you wouldn’t be talking about it, you know, in all these advertisements. But once you get to that level, there’s this huge differentiation between power of to use it or not, you and me using data is one thing. Going to the big boys is a whole nother, I guess a little bit more concerning.

00;22;23;12 – 00;22;38;23
DAVID::
Absolutely. It does. I mean, that brings up some other points. I mean, there’s probably a ton of loopholes that they can get around. You know, I’m just assuming. I don’t even know if that’s true, but I assume just like taxes, if you want to get around the system, you have to just know the law really well. Is that something you’ve worked on?

00;22;39;08 – 00;23;16;05
TROY:
I don’t know that the law’s really there that much. I mean, I don’t know that I don’t think there’s a lot to at least in the United States now, if they’re in Europe, they’re doing business in Europe, they got to comply with those rules. Look at some of the fines that some of them got. I mean, these are huge fines for various different things, whether that’s market share, you know, monopolistic related issues.

But I don’t think in the United States, and this that’s one of the issues people talk about, is that there’s not this uniform law, uniform guidelines, even nationally in the United States that controls privacy rights data you know, and how it storehouse transferred and, you know, the individual rights to it.

00;23;16;12 – 00;23;26;09
DAVID::
Yeah, I remember Equifax, wasn’t it? Equifax a couple of years ago had a data breach of like millions of contact information. It was floating out in the Internet somewhere. Someone could buy it probably.

00;23;27;04 – 00;24;01;23
TROY:
Yeah. It was one of those. One of them, yeah. One of the major credit bureaus. You’re right. I just got this past week, my mortgage company sent me a letter saying that their systems were… Access to their files on their file storage services from October 27 through December 7th month, almost a month and a half were accessed unlawfully in all my and from my private information name, address, loan number, Social Security number were included with the files that were hacked. Now, providing this notice is actually a function of state law on and probably federal law also.

00;24;01;23 – 00;24;03;29
DAVID::
That the extent of their culpability though?

00;24;05;04 – 00;24;19;26
TROY:
No they also have to provide a mechanism for fraud credit monitoring, fraud consultation protection. So they give me some information, website membership number code to subscribe for free to this company that’s on my desk so I can actually do that

00;24;20;03 – 00;24;21;24
DAVID::
Do you think that’s a good process?

00;24;21;24 – 00;24;40;20
TROY:
Yeah. Yeah. I mean it’s spilled milk at this point so you can’t go back and undo it.

00;24;40;20 – 00;24;40;20
DAVID::
Yeah.

00;24;40;20 – 00;25;19;15
TROY:
You know, they’ll probably face some litigation and one of the states that provides for litigation over this kind of thing, I’m sure that’ll happen. But very few states actually have private rates of action for data breaches, even the federal level.

You know, the HIPAA, for example, privacy, right? Violations of HIPAA, you know, if a private right of action that if a hospital discloses your information to somebody else, at least not under that law. They can be held responsible by the federal government for releasing that. And you might be able to fit it into a state UDAAP statute, you know, like a consumer protection statute. Actually HIPAA does not have a provision for you to sue and get damages yourself for a violation of that act.

DAVID::
Wow.

TROY:
It’s going to be like bigger cases where they’re doing it to a lot of people that have systems or controls, whoever governs that will step in and sue.

00;25;19;29 – 00;25;38;16
DAVID::
So again, I guess kind of switching gears a little bit, because I am really… You brought up the health care sector, which is a whole beast probably. Right? I’m wearing an Apple Watch. Apple now has every heartbeat for the past two and a half years or so that I’ve been wearing this and it’s…

00;25;38;17 – 00;25;39;01
TROY:
I’m not. [laughs]

00;25;39;20 – 00;25;40;09
DAVID::
[laughs] Good for you.

00;25;41;00 – 00;25;42;06
TROY:
I don’t for that reason.

00;25;42;14 – 00;25;42;25
DAVID::
Yes.

00;25;42;25 – 00;25;46;19
TROY:
And I like watches so… [laughs]

00;25;46;29 – 00;26;18;23
DAVID::
I do think they look better. I mean, this one’s just kind of bulky, but either way. So you know where I’m going with this. This is all stored on the iPhone or somewhere in the cloud on somebody’s server somewhere. I guess let’s go back to the fox metaphor. Is the fox of my data on my Apple device mine?

And let’s say, OK, you know, maybe my heartbeat going up and down, that’s mine. But the analysis that Apple does on that heartbeat, is that Apple’s? Like is that their IP? You know?

00;26;20;02 – 00;27;13;11
TROY:
Well, it depends whether you have a contract with Apple to where you provide Apple, you voluntarily give Apple or you agree to give Apple those rights. And with a Fox analogy would be Post’s. It’d be the fox being on Post’s land and him having an agreement with Pearson that he can come on to his land and kill the fox. And then he can go kill the fox, take the fox and go home with them because there’s an agreement between the parties that can be for consideration for some value that’s transferred. You could be paying them a couple of dollars or 15% of their felt pelts or whatever, or it could be just the right to enjoy their day or right to enjoy the, you know, the…

DAVID::: I got you.

00;27;13;25 – 00;27;49;14
TROY:
…the watch on your, your hand. You don’t have to have it. So they’re saying since you don’t have to have it, if you do want it, we’re going to own all your data. Or maybe they won’t to own it, but they’re going to have rights to access it for different reasons. So that can happen under contract law in and of itself. When we get into in this sort of this issue with legislation and the government being involved with this process is that the government can come in and say, yeah, you could theoretically or you can actually legally agree to give your information up, but we’re not going to let it happen.

There are going to be limitations on that. And that’s why we talk about law legislation. Because we want the government to say Google, you can’t have or Apple, you might be able to use it, but if they say stop it or they say delete it, you’ve got an actual legal obligation to do that.

00;27;49;22 – 00;27;59;23
DAVID::
That’s interesting because by doing that, they are ironically limiting your freedom. By telling you that you aren’t smart enough to make this decision on your own. Am I getting that right?

00;28;00;12 – 00;28;06;14
TROY:
Yeah. I mean, that’s that’s a very interesting question. That’s a very interesting point.

00;28;07;01 – 00;28;31;10
DAVID::
Well, the reason I say it is because, like, I click, yes, I agree to the terms of service. I don’t know what they say, but that’s a good point because I, also do feel that the level at which we are served with new information is just getting faster. There’s just the higher volume. I can’t even deal with it.

Like, there’s no way I’m going to read everything that I’ve signed up for or agree to.

00;28;31;17 – 00;29;07;29
TROY:
And there’s concept and contract law constructs of adhesion, which is what those things are. Basically, you have a choice. You can’t access the Internet today basically without agreeing to somebody’s operating system. Maybe Linux is open, maybe they don’t have such an issue. But if you don’t have any choice, then it’s either use or not use.

Then you can get out of contract provisions for it. Courts rarely do that, but I suppose that’s what the federal government or the government is stepping in to do. And you’re right, nobody reads them. And that’s also a problem. They could be saying you’re going to give up your firstborn child and you don’t know if you don’t read it.

00;29;08;06 – 00;29;28;12
DAVID::
Yeah, you’re kind of going with this sort of like for me, I know my justification is this sort of flock. I’m with the herd. We’re all doing it together. We’re all using Apple products all the time. So if it were just me, that’d be one thing. But since it’s, you know, millions of us all using the same product, there’s a lot less likelihood that just something would go wrong.

I don’t know. It’s just a mindset, but…

00;29;28;15 – 00;30;24;28
TROY:
Well, there’s also a societal benefit, right? I mean, for technology to step forward and people to use it, people to experiment, people to… Alexa, my wife and I are against it, both of us. We have the same opinion. We don’t want Alexa in our house. Thank you. But yeah, you know, and part of it is we don’t know where the data is going.

We don’t know what Amazon’s doing with that or, you know, or whoever it might be. I don’t have Siri access on my phone. I don’t wear the watch, but I do other things. I do search on my iPhone things that probably wouldn’t want to tell many people other than my therapist maybe. I don’t know.

DAVID:::
Right.

TROY::
But, you know, that’s if we want if government wants people to step forward and wants greater technological access in the world and for society to step forward, then maybe those kind of restrictions ensure that people both get protection of their data, but also enable the companies to step forward with technology.

There’s that sort of balance. And I think that’s what everybody is looking for right now, the grid.

00;30;25;16 – 00;31;29;14
DAVID::
Agreed. So as a marketer, I have to deal with this somewhat. It was more peripheral for me, you know, almost ten years ago when this first started coming onto the scene, I guess 2014 or something like that. I didn’t think much of it because it’s just, you know, oh, someone wants to delete their name off your email lists. Like, of course. Yeah, why not?

But I’d never thought through the implications of their data is theirs and what that means. But a company has a right to your data at certain points, like you mentioned the contract. If you say that they’re allowed to do X, Y and Z with your data, then you’ve given them the right to do that. And so for me, like… I know for my job, the more data I have to target you as a consumer makes it way more affordable for me.

You know, I can make a budget, of I don’t know. I can make it and make it a lot more affordable. I’ll just say that because what’s happening is you’re getting so much more data signals coming through that I can say OK, ignore this signal and pay attention to this one. Like if I’m targeting people in Georgia, for example, I know, I know I can exclude people in South Carolina.

00;31;30;01 – 00;32;57;28
DAVID::
Well, there’s Georgia, South Carolina, and then there’s unknown. So unknown can cost a lot of money, too, right? Because it’s the gray area of we don’t have that information. So if you’re just focused on one not the other, you can kind of highly target, but you might also be letting people out. So again, bottom line is the more data from an advertiser’s perspective, you can segment down, you can really start to hone in on a certain type of person.

And you also brought up AI and yeah, that’s just making it that much more useful to have more data. So I think it’s interesting and my idea around advertising, at least my initial hypothesis around like where we should go next. I think we’re having this like simultaneous divergent topics where it’s on one side, you have the platforms that want to utilize more and more and they’re hungry and they’re building an AI is going to start creating even more analytics around that data and just layers of metadata on top of everything.

The other side, you have the regulatory bodies who are saying, we’re going to stand up for the consumer. We’re going to put some barriers in the way to make it at least a little harder to take advantage of data, at least maliciously to begin with. And then also just to make the consumer more aware of what’s going on.

While I do have to admit, I feel like both are doing a great job at what they’re proposing, while at the same time not necessarily accomplishing the job that they’re trying to do. They are educating more on the regulatory side. I know more about it but I don’t think they even understand the depths of how data are used across. But anyways…

00;32;57;28 – 00;35;42;03
TROY:
You’re right, and that’s what the law is at a fundamental level. Is there are broad rules that work in 95% of the situations. It’s that 5% that we study and we think about in terms of, you know, the lawyers and not really even lawyers, but legal scholars or policy-related people, it’s like unlawful search and seizure. Do you allow somebody who’s a bad actor to wipe out their warrant or to get off because their rights were violated?

Did they do the crime? Yeah. But were there constitutional rights in that? How do we… How important is that for us? So I think for analogy with privacy is what are these overarching rules that we can create that can apply to all kinds of different scenarios? Now, as you were talking a second ago, I was thinking about the difference between us targeting a state; and I do that for my business I’m only licensed in two states, and I target one in particular, Ohio, to do most of my business in Ohio.

And I don’t want to pay for pay-per-click that’s outside Ohio. Now, the next level up in what Google does real well is figure out who needs what I’m selling. You know, what I do. I don’t want somebody looking for divorce lawyers. That’s not helpful for me. But at the same time, then the question is, is how much data are they gathering?

That’s a hot topic is geo targeting. And can I go and say, OK, if I’m a bankruptcy lawyer, I want to target everybody going in and out of the bankruptcy courthouse downtown? That’s possible these days to be able to do that. That’s on the extreme side. Even more extreme than that to me is what some people experience, where they’re talking to their friend about some topic, they look at their phone and all of a sudden they have advertisements for that topic. And reading about that and how the algorithms figure out who they’re GPS targeting, you’re in the same room as somebody else who is just searched for that or just bought that thing. And maybe you have similar tastes and maybe they’ll throw the ad to you.

That is really intrusive. I mean, that is having somebody right there in your bedroom with you all the time, 24/7.

DAVID:::
Yeah.

TROY::

There does need to be limitations on that. I would think. Maybe you want it to a certain degree. I know sometimes when I’m searching for things, I want what I’m searching for. I don’t want to spend 10 minutes figuring out the precise you know, phraseology to get what I want.

And Google’s really good at figuring that out. But I know I’m sacrificing, I’m giving stuff up for that. I’m giving up my privacy.

DAVID:::
Yeah.

TROY::
Now, if I can get paid for doing that on top of getting great results, bring it on. But we’re not to that point yet. That’s way down the road. Once we actually figure out what data is and privacy is, then we can figure out what it’s worth and how to track it and get paid for it.

00;35;42;14 – 00;37;00;12
DAVID::
I had a very interesting conversation around PPC and Google ads, particularly with an account manager actually at Google on our account. And I said… It’s still transitioning. I guess they’re removing third party cookies from the tracker. So when you go to a website, this is for everyone else; When you go for a, like you go from page to page, you click on a link, you perform some behaviors on the website, essentially every time that happens, that sends a signal to the analytics tool that you’re using and you can do all sorts of cool stuff with that on the back side.

I love doing that kind of stuff, but that’s outside of the… This is more philosophical. So we’ll stay on that. But just so everybody understands, like what we’re talking about is this ability for… You through the pixel on the website and analytics is tracking all this behavior. Right? So I asked the guy, I said, so while we’re removing that ability of the third party cookie to be tracked, that’s where it’s essentially where all that data is stored on your browser, and then it’s transferred. I was like, so how is that going to impact conversions? And conversions essentially is shorthand for how much is it going to cost me? Are we going to see a big jump in cost per conversion? And he said, oh, we expect I mean, it’s going to be within the 90 percentile of, of the same…
We expect to basically it’s going to stay exactly the same when they remove it. And I was like, hmm, that’s uh, makes you wonder, right?

00;37;00;13 – 00;37;08;03
TROY:
Yeah. Yeah. Maybe they’re keeping their first party data you know. They don’t need third party trackers because they’re Google and everybody uses them. So why not cut out the competition?

00;37;08;15 – 00;37;09;02
DAVID::
Well it does make me wonder.

00;37;09;02 – 00;37;12;02
TROY:
Just guessing. I’m not making a statement. I’m just guessing here.

00;37;12;02 – 00;37;43;25
DAVID::
I feel the same. I mean, this is all hypothetical and it could be any corporation. It’s not just Google. It could be any anybody that’s housing this data. They’ve probably put it together in some way behind the scenes. My point is, it’s out there. It’s growing. It’s this big monster of… We don’t understand it. There’s a lack of transparency because frankly, there’s not one place you can go to find it.

It’s not like you can just go to Google and say, give us your repository. And that’s the end. Google’s connected to Facebook, it’s connected to Apple, it’s connected whatever, you know, whoever else connects to them.

00;37;43;25 – 00;38;26;18
TROY:
And we’re talking about the big companies, but you also have all the small ones out there, all the different various websites that, you know, might aggregate data and send it off to somebody else. And yeah, you might be able to contact the website that you’re on, but it’s already out there with the aggregators and the data is gone.

Look at what they do with politics. They, you know, the granular… I ran for office. I didn’t get into the whole quantum analytics or whatever they’re called and, you know, is more Facebook and it was primarily Facebook. And they do a great job targeting based on all kinds of things, you know? Interests. And that’s what got them in a big problems in the 2016 election.

But there’s a lot…

[crosstalk]

00;38;27;05 – 00;38;40;03
DAVID::
What I’d really like to see, and this kind of goes back to my thought process. I call it adverteering but I don’t know if that’s the best phraseology because it’s… But I’m a marketer so I have to throw some words together to try to make it catchy.

00;38;40;03 – 00;38;41;18
TROY:
I like it. I read the paper.

00;38;42;03 – 00;39;48;09
DAVID::
OK, good. OK, well for everyone else who hasn’t, essentially, I think we’re getting to a point where it’s going to be better if data are provided voluntarily. And I think it’s going to be better if you can go and access your data that you’re sharing with whoever on your phone and manage it. You’re on Facebook. I like seeing clothes ads.

I’m terrible with fashion, so I like being targeted by sports jackets or watches or what have you because I’m not going to be thinking about that otherwise. I’d love to have a box in Facebook that I go, I want to see more sports coat ads because I want to buy one suit and turn off the dog ads for the dog food because I already bought some.

Like managing all that on my own. I’d actually enjoy that and I think we’re getting to a point where it behooves the companies and the responsible parties to do this because I think it saves them time. Because when you’re interested in something that’s as a marketer, I know that’s your intent. That’s like the highest form of intent. you’re ready to purchase right now, and that’s who I’d want to target.

So I would pay a little extra knowing that they’ve switched that on purposefully and like it’s a voluntary data feed, so to speak.

00;39;48;09 – 00;40;03;26
TROY:
So now how do you balance that with funnels? Right? With hitting people with information or products that maybe they don’t even know they need or they want. But you give it to them and all of a sudden it’s like, well, there’s… I didn’t know this ever existed to be able to switch it on. Like, how do you how do you balance that out?

00;40;04;08 – 00;40;57;03
DAVID::
Yeah, it’s a good question. I mean, if you’re thinking about like a dashboard of your data, I guess you could just say, show me anything as well. But if we’re going down the route of people managing themselves, I think there would be platforms where you will just see more generic ads, like a Super Bowl commercial. That’s sort of like the biggest awareness campaign of all time, right? Or at least used to be.

Now it’s probably a Kim Kardashian tweet, but… [laughs] Now, you know, so I think it’s just different platforms. But I think it depends. Like, I think Facebook could serve an ad not related to you in any way if you want to see it. But in order to use your data back to the whole idea of property and privacy, if they’re going to use your data for you or against you or whatever to make money then that’s that’s when you have the right… That’s when you can maybe self-manage.

Anyway, this is all hypothetical, but I think it’d be a move in the right direction.

00;40;57;10 – 00;41;53;28
TROY:
You talk a little bit about where Europe does with their PR is that they… That’s the sites where you have to agree to the cookies and you slot… And if you don’t want to just accept all, you can click on the other button and then you have a choice what to disclose. That’s what they’re doing now.

But now they’re not monetizing. Now you don’t get paid for that. But they’re telling you upfront you have the right to collect it. What they’re also doing is you actually have to have a bonafide reason for obtaining the data or have their express permission that you’ve given to collect your data in order for them to even have it. That goes above and beyond, especially with third party cookies where you’re just collecting, scooping up, you know, hoovering up whatever you can get your hands on as far as their sites versus specific direct need for that particular person. But I mean, I like the idea of having like a dashboard and different areas of your life, like, OK, I want to, I want to disclose this today.

00;41;53;28 – 00;41;54;15
DAVID::
Yeah, that would be a whole point…

00;41;54;15 – 00;42;00;11
TROY:
And pay me, you know, $15 for every time you click, you know, you sell me something, I wouldn’t mind. Give me some free product.

00;42;00;13 – 00;42;12;23
DAVID::
[laughs] Well, I just don’t even think those. Yeah, I see it as like go to the mailbox these days and you’re still getting like this massive coupon catalogs. You’re like, who the heck reads this stuff? Anyway, that’s just, you know.

00;42;12;23 – 00;42;31;07
TROY:
Who reads it? People who buy it. I mean, that’s why they send it out. The people who read it. People just like those little porcelain plates that you see in the newspaper, like the little train sets, you know, that are these inserts for the newspaper, you know?

[laughs] [crosstalk]

TROY::
Maybe a little older.

00;42;31;19 – 00;42;48;28
DAVID::
I’m thinking the cookie question; That you get on a website, it’s not do you accept or not. For most people, it’s can you get this out of my face? I’m trying to read something. They’re not thinking about yes or no. I think we’re doing a good job as, I don’t know, advocates that people are learning more and how to protect themselves.

00;42;48;28 – 00;43;23;22
DAVID::
But people don’t have the time. So what my thought about having a dashboard is really like it would need to be some sort of central feed that you’re sending out to browsers or I don’t know, iPhone back end tech, right? So it’s all stored for you in those places which you have direct access to at any time. Then when you visit a website you already have your preferences set up so you wouldn’t have to like click through everything and just to see the content.

So that’s my idea. Just to clarify, I’m not like, I know [unknown] is doing that and I think that’s the right move, but I think we just need something a lot more comprehensive to manage. Do you still get a newspaper?

00;43;23;29 – 00;43;37;10
TROY:
I got the electronic one for a while. I just ended my subscription probably like last week or so. But I read it. I read it every day for a few years. I still get magazines in the mail, Economist. I read that, this magazine, a hard copy.

00;43;37;10 – 00;43;39;15
DAVID::
I just bought a book. I’m still reading books sometimes. [laughs]

00;43;39;22 – 00;43;48;27
TROY:
Yeah? That’s good. [laughs] Keep reading. That’s right. [crosstalk] [inaudible], Kindle, I just never… My eyes maybe just don’t appreciate the screen that much.

00;43;49;00 – 00;43;59;07
DAVID::
I think we should start concluding. I mean, I think we’ve covered a lot today. I don’t want to overwhelm everyone. And do you have any final thoughts? I’ll just pass it to you for, to close us out.

00;43;59;18 – 00;45;25;16
TROY:
Well, my way of thinking is always broad to narrow. So it’s what’s the big picture? What’s our objective? What do we want to accomplish? And I think we’re clear that we want to accomplish greater privacy of our data. And then it’s next layer down, sort of narrowing what are the contours of that? Actually, really, what’s the universal one that exists right now?

Like, what’s the lay of the land? If you don’t know where you are, you don’t know where you’re going to be going. So I would say then that level was tricky with all that out. And then getting into maybe universal related policies and then maybe you end up with greater individual policies like we have now with those individual industries that we talked about, from financial regulations to health care to credit reporting, all that.

But I do think that we need to get to a federal level with this to standardize everything across the board. And not only would that do a better job of protecting consumers, but it would actually provide benefit to businesses as well, because if it’s standardized method of doing something, then it’s less expensive and they know exactly what they’re where they need to be across the United States, wherever they’re acting.

But I do think it’s possible. I think we have some, a little bit more time. You have politics it seems like it’s involved with everything today and every aspect of our lives that it’s, um, got to get over the the R versus D hurdles and just get to consumers so long as there’s a ton of money in politics, I’m not holding my breath that’s going to happen this year. But I have hope. Some day.

[laughs]

00;45;25;19 – 00;45;32;15
DAVID::
Is there anything, anything exciting that you know about that you’d want to leave for everyone to know? I mean, is there good news coming down the pipe?

00;45;33;07 – 00;46;27;20
TROY:
From this standpoint? A lot of states are looking at this right now. I think that’s really interesting. A lot of folks are looking at tech-related things really closely. DeFi as real big. You know, crypto is huge, blockchain all that outside of privacy. But then you sort of do get in a little privacy into that world. Is your IP or is your wallet address private or not?

Can the government require the exchanges to know their customers just like banks have to do? They’re leaning towards yes. Does the whole concept of crypto in general, where it’s decentralized and anonymous go away once more governments, or even really the United States is the biggie, says something needs to… You need to avoid funding terrorists and, or the potential for that. I think that’s all really interesting. I really am fascinated by AI and where we end up with that. I’d love to see more AI in the law, quite frankly.

00;46;28;06 – 00;46;48;13
DAVID::
Yeah, that’s a good point. That be pretty hard to do. I mean, that’s one of the hard parts about AI But I think we need to do a number two podcast of this because you just brought up crypto and now I’m like, Oh man, we didn’t even touch on that. [laughs] So that’d be a whole good one. Where can people find you and what’s the best location to email you, your website, Twitter, all that kind of stuff?

00;46;49;02 – 00;47;03;24
TROY:
Yeah, my website. The easiest way is doucet.law. I’m off and on Twitter, but if you go to my website, it has my email as [email protected] also for everybody.

00;47;04;10 – 00;47;06;20
DAVID::
Awesome. Well, thanks again for letting me interview you. This has been great.

00;47;06;21 – 00;47;08;00
TROY:
Thanks for having me. I appreciate it.