Lawyers are your friend, even when they ask you to take your medicine.
Yeah, it’s a slightly mixed metaphor, but it accurately describes the dynamic that exists between many business people and their legal counsel.
“When you go into the doctor’s office, you have the white coat syndrome,” Alysa Hutnik, a partner at Kelley Drye and chair of the firm’s privacy and information security practice, quipped on stage at AdExchanger’s CTV Connect conference in New York City last week.
“And I think, with advertising, sometimes a lawyer represents the same kind of feeling,” Hutnik said.
Don’t make ‘unforced errors’
The assumption often is that lawyers are the ultimate party poopers who want to stop innovative product people from doing what they do best.
But privacy lawyers are just trying to protect product people and business folks from themselves and clear the way for less risky (if not risk-free) innovation.
“There are lots of ways going forward to use data in the right way and not have any legal issues,” Hutnik said. “And there are a lot of pitfalls where, if you don’t know them, they become unforced errors.”
Think of your privacy lawyer as a consultant who knows what’s up and wants to help you use data in cool ways – “I am a huge, enthusiastic supporter of using data in advertising,” Hutnik said – but without crossing any legal or ethical lines.
“You can take risks,” she said, “but you want to take informed risks about what you are doing to get to your revenue goals.”
‘Not a whole lot of forgiveness at this point’
For example, plausible deniability isn’t going to work as a defense if enforcers come knocking.
Regulators view targeted advertising as one of the most important enforcement issues at the state level – and it’s important to remember that “regulators are consumers, too,” Hutnik said.
“They have CTV; they have streaming; they are using it and they are testing the opt-outs,” she said. “They are testing how you present that and they are finding that most companies are not in compliance.”
Companies usually get roughly a year of grace from regulators after a law passes, what Hutnik called “a little bit of a break.” But once a couple more years have gone by, then three, then four, goodwill runs out. The California Consumer Privacy Act went into effect in 2018, for Pete’s sake.
“There’s not a whole lot of forgiveness at this point,” Hutnik said.
Take the use of PII in targeted advertising. Hutnik said she heard multiple people say throughout the day at the CTV Connect event that they’re “fine,” because they don’t use any personally identifiable information.
“That worked five years ago,” Hutnik said, “but when you’re talking about an ID – it could be hashed, it could be salted – and you’re doing matching to activate an audience … that is considered personal information and you don’t get any credit anymore for probabilistic identifiers.”
Talk to everyone
So what’s a company to do?
First, make your privacy lawyer into a business stakeholder, Hutnik advised.
Talking to your lawyer and asking lots of questions is a far less expensive way to address privacy compliance challenges than catching the attention of a regulator and having to dig out of a hole.
But by the same token, lawyers need to learn more about the business of ad tech.
“Many privacy lawyers never thought they needed to learn ad tech, and that’s not their comfort zone, so they weigh in with a very lawyerly perspective,” Hutnik said. “But if you don’t understand a business, you can’t give good legal advice.”
That’s why Hutnik says she regularly attends business conferences, sometimes even more often than legal conferences.
“It’s getting different people in the same room and having very different conversations than we’ve had in the past when talking about this subject,” she said.
If she were a client, Hutnik said, she’d demand that her privacy lawyer prioritize having more expansive discussions and bringing more people into the dialogue.
“And you never even have to pay billable hours for a lot of that!” Hutnik said.
🙏 Thanks for reading! And thanks to everyone who came up to me and said “hi” at CTV Connect. Hopefully I wasn’t too awkward. 😹 As always, feel free to drop me a line at [email protected] with any comments or feedback.
