A new USPTO rule combines trademarks, data privacy, and telecommunications policy. There’s a lot of concern about the privacy question, but not a lot of concern about the practicality of the precedent being set.
I. The New Rule: Provide An E-mail Address
Trademarks and data privacy don’t overlap very often. I got interested in law because of consumer protection issues in the telecommunications and consumer electronics industries, and I fell into trademarks because it turned out that copyright law borders both areas. The USPTO recently issued some new rules and guidelines, including some requirements for trademark applications. The most controversial is Requirement III(A), which requires applicants to provide an e-mail address for correspondence regarding the trademark application.
II. The Concern: Publishing an E-mail Address Could Compromise Privacy and Safety
Attorneys at the firm Loeb&Loeb express the worried reaction of many trademark practitioners: “By requiring the owner’s email address, however, the USPTO is making this information available to the public via the USPTO website, which increases the opportunities for spam and scams as well as the risk of this information being compromised.”
I agree that bureaucratic policies should take into consideration the impacts on the safety and well-being (digital and physical) of the people who must abide by the policies. However, I do not agree that this requirement poses a serious, significant, or new threat to data privacy or security. Quite simply: creating a business e-mail address neither difficult nor unusual, and publishing a business e-mail is neither exceptionally risky nor unusual.
III. Glib and Pithy Riposte: Welcome To 2020, E-Mail is Used
It’s not hard to set up a new e-mail address. Most trademark applicants file a trademark related to a business*, and it is and should be a common practice to set up a business e-mail address as part of starting any business. Publishing a business e-mail cannot be seriously interpreted as a breach of data privacy. The e-mail address requirement requires the e-mail to be a dedicated e-mail specifically set up for the purpose of correspondence with the USPTO. This actually reduces the concerns about data privacy, because any e-mail that does not appear to be from the USPTO is obviously illegitimate, therefore making it easier to detect spam and phishing attempts.
IV. Broader, Serious Concern: Collecting E-mail Addresses Can Creep, Even if it’s not Creepy
A greater concern that this policy introduces is one I did not see anyone mention: creep. This happens in video games when a new concept or mechanic is introduced to the game, and it slowly affects the rest of the game in unintended ways. The paradigm example is introducing something that is more powerful than anything already existing in the game, so it becomes the dominant strategy. In order to keep the game interesting and balanced, the game designers are forced to introduce other new elements to the game that can provide competitive alternatives to the preferred option. Soon, the entire game has shifted as a result of introducing just one new element.
Introducing the idea that a government office can require a citizen to have a dedicated e-mail address specifically for that government office could lead to every single government office requiring every citizen to have an e-mail inbox dedicated to correspondence with that office (and from there, maybe every subdivision within each office requires a dedicated inbox, etc.). This could grow out of control very quickly.
Todd Howard has a rule for his team when making open world games: “We can do anything, but we can’t do everything.” The same rule can apply to government bureaucracies. A government office can implement a policy to streamline an administrative process, but an office really shouldn’t try to implement every possible policy that could streamline every administrative process. A policy that seeks to do something new, however simple it may be, should consider the implications of that policy on the world outside that office.
V. Conclusion: Broader Implications for Tech Policy
One of the implications of this entire discussion that should not go unmentioned is that the US government increasingly expects citizens to have reliable internet access. The way that internet-dependent technologies have permeated our lives increasingly cause internet access to feel like a utility—something like water or electricity or heat that we expect any livable home to have, even the most modest one. As more government offices take for granted that citizens have reliable internet access (for example, by creating policies that require e-mail addresses and only accepting online applications), the more pressure there is for the telecommunications industry. Certain regulations and standards regarding internet access are continually debated, and government reliance on the efficacy of this technology puts pretty on the internet service providers (and other companies involved) to deliver a certain minimum quality with minimum consistency and with a certain level of accessibility. I expect government agency rules like this to be cited in future cases in the DC Appeals Court and US Supreme Court rulings regarding the role of the FCC and FTC in regulating telecommunications companies.
*remember that all trademarks can only be registered if the mark is connected to a good or service in commerce