What's Coming in e-Commerce in 2010?

For this year-end edition, because I believe that much of e-commerce law and strategy is no different from what is done in offline business (but people must be shown that it often is the same), I will follow suit and offer my own thoughts on the major trends that will affect online business in the next year.

Of course, I do this at the risk of being embarrassed when the predictions inevitably prove wrong, whether in a year ' or five, or 10. In a field marked by the iconic statement, “This changes everything,” there is no reason to expect that such always-expected change will occur in predictable ways. While some developments now seem inevitable in 20-20 hindsight ' the explosion of the multi-functional portable device and the success of the iPhone, for example ' others did not, at the time, beginning with the growth of e-commerce itself. Perhaps prognostication about what online commerce could do was as much an aspiration of its early supporters as it was a true prediction.

Nonetheless, in the spirit of “often wrong, always certain,” let's consider what will be the top 10 hot topics for e-commerce in 2010 ' or at least what I think they should be.

1. Non-Latin domain names. When I posed this question to my colleague and e-commerce veteran Tim Szuhaj, he instantly cited one issue as the greatest concern for his clients in the coming years: the creation of domain names and extensions (.com or .net) in non-Latin characters, such as Arabic or Chinese. Late this year, the Internet domain name manager ICANN (the International Corporation for the Assignment of Names and Numbers) quietly approved that proposal, which could spark yet another Internet land grab (see, http://news.cnet.com/8301-1023_3-10387139-93.html; http://www.cnn.com/2009/TECH/10/29/internet.domains.languages/index.html). Technically named “internationalized domain names” (see, www.icann.org/en/announcements/announcement-30oct09-en.htm and www.icann.org/en/topics/idn), the proposal contemplated allowing nations to apply to use non-ASCII script to provide local-language characters for domain names, tentatively scheduled to begin in the middle of last month. According to ICANN Chairman Peter Dengate Thrush: “The coming introduction of non-Latin characters represents the biggest technical change to the Internet since it was created four decades ago” (see, www.icann.org/en/announcements/announcement-30oct09-en.htm).

Of course, change can be expensive. With “100,000 characters of the languages of the world” available, in ICANN's estimation, brand owners who have worried about spending to protect their name in multiple domains, whether for different countries or in specialty domains such as .biz, must now contemplate the same questions for different typefaces and countries around the world. Perhaps this is no different than the question of whether the additional protection of registering trademarks internationally justifies the potentially substantial expense, but the risk of being foreclosed out of significant markets makes the choice an important one. In addition, brand managers must soon weigh the potential costs of dealing with cybersquatters, but in new domains where procedures have not yet been established to protect the rights of trademark owners in a cost-efficient manner, as has already occurred in existing domains. Also, the infrastructure to support such language characters must exist, such as hardware, keyboards and other peripherals that will use the new typefaces (although presumably it already exists wherever such languages are used). (See, www.inc.com/news/articles/2009/11/icann.html.)

Yet haven't we seen this problem before? Most recently, in June, many marketers worked through the night to reserve Facebook.com's “user names” when it allowed companies to acquire them individually earlier in 2009. Similarly (but with less apparent attention), ICANN had a year earlier announced a program to permit customized domain name extensions (see, www.icann.org/en/topics/new-gtld-program.htm).

However, these new marketing venues should be quite different, once the initial organizational work has been completed. For one, the customized domain-name process involves far more work than simply registering a name, as ICANN describes: “The application for a new gTLD is a much more complex process. An applicant for a new gTLD is, in fact, applying to create and operate a registry business and sign a contract with ICANN” (see, www.icann.org/en/topics/new-gtlds/strategy-faq.htm). In addition, in a world that has grown accustomed to using .com and other existing domains, one can naturally be skeptical about the justification for spending limited funds (especially in these difficult economic times) on the assumption that online shoppers will make the switch to become comfortable using alternative domains.

As for new character-set expansion, however, the attraction of being able to go online in one's own language seems so compelling that e-commerce firms cannot ignore this subject. Even if the full development will take several years, brand firms should begin monitoring the process now and, more important, factor into future budgets the costs of protecting the brand ' including planning for money to cover legal fees. Lawyers, of course, love anything that makes the rules for e-commerce uncertain and which, as a result, requires firms to seek legal advice that may be no more accurate than the predictions in this column (at least until rules are developed for the new procedures).

2. FTC blogging rule implementation. Many writers have fretted about the effect on the Internet of the Federal Trade Commission's (“FTC”) new clarification that its longstanding rules on endorsements apply to bloggers (see, www.ftc.gov/opa/2009/10/endortest.shtm; for an in-depth treatment of the guidance and its application to blogging, see, “Recommendation Marketing in Evolving Social Media Channels: A Rundown of the FTC's Endorsement Guides,” in the October 2009 edition of e-Commerce Law & Strategy; subscribers go to www.ljnonline.com/issues/ljn_ecommerce/26_6/news/152810-1.html). After all, regulation of such statements, even if only in the interest of clarity and full disclosure, seems at odds with the culture of free speech that has flourished in cyberspace, where anonymity is often a crucial part of the attraction.

Yet for all the attention, does anyone really expect that the FTC will be more active in this arena than in any of the other several thousand it regulates? In other words, an agency that has a wide regulatory charge cannot devote the same efforts to every matter and, in fact, may be able to prosecute nothing more than a handful of cases ' it must rely on the in terrorem effect to obtain voluntary compliance. Therefore, one might expect a few well-publicized enforcement efforts to call attention to the new rules ' followed by the same inattention to the problem that existed before the new rules went into effect.

From another perspective, however, the rules represent another toehold for U.S. government regulation of online activity, in contrast to the close supervision seen in other countries. But even that is nothing unusual in our society, because these regulations simply apply common-sense police-power authority to try to ensure full disclosure by online endorsers in the interest of a fair playing field ' a level of government intrusion that our society has tolerated for many years without concern (and that is likely to grow following the scandals exposed in the economic meltdown of 2008-2009).

3. Cash (or lack thereof). Just as in the real-world economy, 2010 (like 2009) will almost certainly be known as the year without cash. Virtually no one has it, either to invest or spend. Cost cutting should remain critical to profitability and survival, and spending ' whether on salaries, capital items or marketing ' will be scrutinized, if not eliminated (which obviously will affect revenues of B2B firms).

In addition, with a particular e-commerce focus, states should continue to accelerate efforts to recover use taxes not paid by online shoppers, as declining sales mean lower sales-tax revenue. Some states have already challenged arguments about tax nexus by claiming that use of in-state affiliates creates a duty for online firms to collect and remit sales tax (see, www.amazon.com/gp/help/customer/display.html?nodeId=468512; www.marketrap.com/article/view_article/91164/california-lawmakers-try-to-sneak-in-sales-tax-on-amazoncom-inc-and-others; and http://newsok.com/e-pay-more-states-pass-an-amazon-law/article/3410673). Other states, such as Ohio and Michigan, use gross-business receipts to compute taxes, rather than income, to make up the difference ' which curiously could help e-commerce firms, and which should have lower expenses (and higher income) than their real-world peers.

Shoppers without disposable income, of course, cannot help e-commerce firms with the revenue side of the profitability equation. Perhaps the economic need to control expenses will force firms to consider cost-saving e-tools that have been widely promoted in the technology press, such as virtualization and “cloud” technology (i.e., relying on the Internet to provide resources and storage, rather than making it available on local computers), but that are not yet widely adopted in business (see, www.law.com/jsp/article.jsp?id=1202435151070&rss=newswire&hbxlogin=1). Of course, similar expectations have remained unfulfilled in the past about technologies for which inventors and promoters tried to win widespread use to reduce travel and meeting costs, such as electronic meetings and data rooms. While one would have expected that the ability to increase profit by cutting costs would have led firms to use such tools long ago, perhaps the inability to pay for actions that must be taken will force them to consider these, and more seriously so, in 2010 ' if they now have the cash to pay for them. If not, then the words of one technology director quoted in the AmLaw Tech Survey 2009 may be prophetic: “We're all trying these technologies that are supposed to be the next great thing to take over IT. And they really do help. But none is a cure for spending money, which is what our leadership wants” (see, www.law.com/jsp/article.jsp?id=1202435151070&rss=newswire&hbxlogin=1).

4. What to do with social media? In prior years, so-called “social media,” such as Facebook, LinkedIn, Twitter and similar Web sites, has often appeared on lists such as this one as “the next big thing.” Today, of course, there can be no question that such sites are here to stay ' whether system administrators (much less business leaders) like it or not.

But the most pressing questions for business leaders, in the for-profit and non-profit sector, remain: “What to do with it?” and “How do we manage it?” While a firm may be thrilled to have many people following its online presence, a much greater challenge remains in finding a way to monetize that interest.

At a different level, firms that have been resistant to social media in the workplace, on the assumption that it is nothing more than a diversion from the “real work” the companies' employees earn a wage to do, must also consider whether that work could be done better and more efficiently with access to social media. For example, diligence about one's markets, competitors and (in litigation) adversaries has always been important. In an era of “unprotected disclosure” of one's personal life on social-media sites, failing to check them could leave critical information unturned or, worse, allow an employer to be surprised and embarrassed by inappropriate material that one of its own employees has posted online (see, for example, “The Cult of Personality: How Building Your Brand with Social Networking Can Destroy It,” in the August 2009 edition of e-Commerce Law and Strategy; subscribers, go to www.ljnonline.com/issues/ljn_ecommerce/26_4/news/152453-1.html).

More positively, I see social media as a search for the communities that no longer exist in our lives, as our workplaces and neighborhoods have been shattered by layoffs, fear of crime and, simply but quite effectively, the cubicle isolation of the knowledge-economy worker. In such a world, using social media to connect with long-lost classmates or friends (who may turn out to become potential clients or customers) is simply an adaptation of old ways of finding people and information to the methods and places in which we live our lives today. When one identifies oneself as an attorney when socializing at a home-and-school meeting, or at a Web site for one's grade-school class reunion, he or she is marketing herself or himself, or the person's firm, while simply catching up with people he or she once knew.

While none of us knows if this type of marketing will produce enough work to cover the time and expense necessary to create it, I do not think that anyone could argue that these efforts are not worth considering. Within my own firm, for example, our technology committee is having a spirited debate between those who have obtained potential referrals through their “personal” participation from home on social-media sites (which are blocked on our office network), and the system administrators who generally fear abuse and unknown harms that could arise if employees had unfettered access to such sites.

Much like the now-unimaginable 1990s debates over whether to provide e-mail or Internet access in a business setting, a continuing challenge in 2010 will be what to do with such access to further a firm's goals ' and how to do it better than one's competitors, who will certainly be doing the same.

5. Possible vs. permitted. Underlying several of the topics on this list is a growing tension in Internet law between what the technology makes possible ' at times, a subject that appears to be without limit ' and what the law and/or social mores permit business to do with that technology. For example, consider the regrets after it was discovered that a health-club shooter had disclosed his plans in an online posting, which no one thought to bring to the attention of authorities, if, indeed, anyone had seen it, or believed it (see, www.abajournal.com/news/shooter and www.abajournal.com/news/gym_gunman_was_systems_analyst_at_kl_gates). Should we allow ' or require ' authorities to continually monitor online postings for such warnings, or for example, for terrorist information, despite our traditional concern about such “Big Brother” activity? Similarly, but less menacingly, an unhappy tenant's tweets of complaint about her apartment recently led to a defamation lawsuit against her by her landlord, which discovered the tweets during due diligence in a lawsuit against it by the disaffected tenant (see, www.abajournal.com/news/tenant_sued_by_landlord_for_50k_over_tweet). And, from the you-should-have-known-better-than-to-ask-permission department, a recent Philadelphia Bar Association ethics opinion addressed the propriety of “friending” an opposing party's witnesses on Facebook.com (see, www.padisciplinaryboard.org/newsletters/2009/july.php, and www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion_2009-2.pdf).

Certainly, lawyers and businesspersons alike have always had to confront the dichotomy found among the possible, the prohibited and the permitted, so this is not a unique hot topic for 2010. However, with the developments in technology affecting e-commerce specifically and online business generally, in 2010 that conflict will be as close as one's desktop, and as omnipresent as one's Internet connection.

6. Discounting strikes back. In mid-2007, the U.S. Supreme Court issued a significant decision upholding long-standing law that allows manufacturers to require resellers to set a minimum price for their products, as a tool to protect the brand, its image and goodwill. In other words, the e-commerce seller with significant cost advantages can legally be required by a manufacturer to charge the same price as the overhead-laden bricks-and-mortar retailer.

Yet perhaps due to the economic pressures of the last year and the need for increased sales, major sellers in 2009, even of luxury goods, began holding short-term online sales. As reported in The Wall Street Journal, firms such as Saks and Yves Saint Laurent, and newcomers Gilt.com, Ruelala.com and Hautelook.com held limited-time sales, or “invitation only” events, to attract shoppers without undercutting the upscale image and brand supported by the minimum-pricing structure. Some states have even passed laws limiting such minimum-pricing requirements (see, http://online.wsj.com/article/SB124087840110661643.html). With the continuing weakness in the economy, however, it remains to be seen whether more online sellers will follow the path blazed by Saks and the newcomers ' even at the risk of losing suppliers (e.g., http://blogs.computerworld.com/14842/online_retailer_sees_red_over_minimum_pricing), or whether firms that have never considered discounting will be able to stand by their position, despite possibly losing sales and customers to online sellers willing to earn less profit (see, http://online.wsj.com/article/SB123007559680631543.html). (For more information on why some firms won't sell online, regardless of price, see, “Offline and Happy to Be There: The Law Offers Merchants Protection When Their Goods End Up Online Anyway,” in the November2004 edition of e-Commerce Law & Strategy; subscribers, go to www.ljnonline.com/issues/ljn_ecommerce/21_7/news/143420-1.html.)

Similarly, will other states follow the lead of Maryland, where a law prohibiting manufacturers from requiring retailers to sell the manufacturers' goods at minimum prices went into effect on Oct. 1, and act to benefit consumers (and e-commerce sellers) by restricting manufacturers from requiring minimum resale prices? Or will they continue to allow the status quo endorsed in 2007 by the U.S. Supreme Court when it upheld restrictions against discounting to promote brand building?

7. As time goes by. It has often been said that perhaps the only constant factor about the Internet (and about e-commerce as well) is change ' the markets and the technology continue to evolve. But change can be disruptive and, in some cases, online shoppers would like things to stay just where they are, such as with bookmarks and reference materials.

But that doesn't always happen, as Web addresses change and firms change, and as a host of other events could cause a valid link to cease to work. The problem of so-called “link rot” certainly doesn't rise to the level of any of the other concerns mentioned in this article, but it can be inconvenient (if one has to locate the new link) (see, www.uscourts.gov/ttb/2009-07/article09.cfm?WT.cg_n=TTB&WT.cg_s=July09_article09_newsroom, and http://en.wikipedia.org/wiki/Link_rot; http://en.wikipedia.org/wiki/Wikipedia:Linkrot). But in a world that relies on online sources for information and business, it can, even worse, cause a loss of business, if, for instance, shoppers pointed to a non-functioning link from another site or an old message give up and take their business elsewhere. As e-commerce Web sites mature, keeping online customers by improving the shopping experience to eliminate link rot could become a new challenge.

8. The bricks and mortar strike back. This concern reflects my own continuing confusion about why the behemoths of the real world, with all the advantages (and costs, of course) of physical locations, live employees, and decades of brand image and goodwill, allowed unknown, unproven e-commerce firms to get a foothold in their marketplace. If I were an established retailer (albeit one with 20-20 hindsight), I might try to defend my position against online sellers by allowing buyers to shop online, but pick up and return at my physical locations, if they prefer to do so; Wal-Mart, for example, has a ship-to-store option that allows one to avoid shipping costs (a major factor in online sales). As companies struggle to survive in a difficult economy, perhaps 2010 will see the bricks-and-mortar sellers try to merge their real-world advantages of convenience and security with the larger inventories found online, in a competition for the dwindling customer base.

9. Non-profits do e-commerce, too. While again perhaps not a new development in 2010, I think we will see an increasing use of e-commerce strategies by non-profits. After all, as I discussed in my October 2009 column on virtual museums, and in an earlier column on promoting religions online, non-profits use the Internet to further their financial and membership goals just the same as any for-profit business does (see, “The Virtual Museum: If You 'Put It Up,' Will People Come?” and “e-Battling Demons and Other Woes: Selling Religion Online,” respectively; subscribers, go to, respectively, www.ljnonline.com/issues/ljn_ecommerce/26_6/news/152814-1.html, and www.ljnonline.com/issues/ljn_ecommerce/24_9/news/149773-1.html).

For example, I recently attended a presentation by the communications director for a large Catholic archdiocese that has ventured heavily into social media for evangelization. The cardinal who leads that diocese has championed using all of today's technologies to “be out there” and “be everywhere” to “reach people where they are,” when traditional methods, such as weekly bulletins, have become less effective for today's lifestyles of parishioners. Similarly, I recently attended an online seminar at which the Lance Armstrong Foundation explained how it uses many forms of social media extensively to build its Livestrong campaign (see, www.slideshare.net/JeffTe/social-media-strategy-at-lance-armstrong-foundation-naydo-blackbaud-webinar-november-2009). While most non-profits will not be able to afford someone on staff who is familiar with marketing and doing business online (or who can devote the time to do it), many of the tools used by e-commerce firms are readily available, at low or minimal cost.

The prediction, therefore, is not that non-profits will begin to use e-commerce strategies ' the larger and more sophisticated ones are already there; instead, I predict that just as e-commerce in the for-profit sector migrated from the “early adopters” ' the largest firms, and the cutting-edge firms, such as Amazon.com ' to business in general, 2010 will see an increasing number of non-profits move beyond so-called brochureware Web sites to more innovative and interactive using online technologies to expand and advance their purposes and mission.

10. Same time, next decade. Virtually every year-end prediction article acknowledges that the world will probably turn out differently, in ways that the author could not imagine. I, too, will adopt that theme, but with a twist: I don't think much of what I have predicted is fundamentally “new.” Instead, many of the “top 10 technology trends for 2000″ as reported in Red Herring Communications' 2000 = Top Technology Trends (to pick a dot-com era thought leader) are, in one form or another, the same underlying concerns for e-commerce firms today, albeit ones that are playing out in new formats. In other words, while there will always be truly transformative technologies that appear unexpectedly ' the World Wide Web itself, for example ' I think that the growth of e-commerce law has been more of a continuous development of largely traditional concepts that became more refined as the technology grew and improved over time. For example, some of the trends highlighted by Red Herring in November 1999 (when everyone was worrying about a multitude of supposedly looming Y2K disasters) included:

• The personalization of the consumer experience;
• The combination of online and bricks-and-mortar businesses;
• The “land grabs” as business firms try to establish their positions in e-commerce; and
• The opportunities in emerging markets of China and Europe (an analog of the non-Latin character question).

All these were different aspects, at some level, of one of the concerns I have raised above.

Does that mean that the old predictions were wrong? Of course not; it means only that the challenges the Internet and e-commerce pose to businesses, new and old alike, remain relatively constant as technology develops, even if the particular nuances may vary from year to year, depending on the latest hot innovation.

Perhaps writers who are producing prediction columns should not describe their lists as what will be important in the coming year, but instead focus on predicting what should be important (whether or not the business world develops in that direction) in the future, whether near or far.

So as 2009 comes to a close, I invite our readers to think about the items in this list; I am encouraging my own firm's clients to do so. But I also invite those reading this in the future not to laugh too much, not because the predictions proved wrong, but because the e-commerce executives of 2020 will still be trying to work out the same basic online business concerns.

(Editor's Note: You follow Stanley Jaskiewicz through the year. For our year-end edition, Mr. Jaskiewicz offers his predictions ' and he stresses that they are that, by definition, but “only” his very well-educated guesses ' for what Big Issues 2010 will hold for e-commerce. Happ' e-New Year!)

Making predictions for the New Year is a standard December column topic. Not that I consider either myself or this publication simply “standard,” mind you, but the year-end and look-ahead article is a standard, but time-honored and valuable feature in any publication.

And so, here we are.

For this year-end edition, because I believe that much of e-commerce law and strategy is no different from what is done in offline business (but people must be shown that it often is the same), I will follow suit and offer my own thoughts on the major trends that will affect online business in the next year.

Of course, I do this at the risk of being embarrassed when the predictions inevitably prove wrong, whether in a year ' or five, or 10. In a field marked by the iconic statement, “This changes everything,” there is no reason to expect that such always-expected change will occur in predictable ways. While some developments now seem inevitable in 20-20 hindsight ' the explosion of the multi-functional portable device and the success of the iPhone, for example ' others did not, at the time, beginning with the growth of e-commerce itself. Perhaps prognostication about what online commerce could do was as much an aspiration of its early supporters as it was a true prediction.

Nonetheless, in the spirit of “often wrong, always certain,” let's consider what will be the top 10 hot topics for e-commerce in 2010 ' or at least what I think they should be.

1. Non-Latin domain names. When I posed this question to my colleague and e-commerce veteran Tim Szuhaj, he instantly cited one issue as the greatest concern for his clients in the coming years: the creation of domain names and extensions (.com or .net) in non-Latin characters, such as Arabic or Chinese. Late this year, the Internet domain name manager ICANN (the International Corporation for the Assignment of Names and Numbers) quietly approved that proposal, which could spark yet another Internet land grab (see, http://news.cnet.com/8301-1023_3-10387139-93.html; http://www.cnn.com/2009/TECH/10/29/internet.domains.languages/index.html). Technically named “internationalized domain names” (see, www.icann.org/en/announcements/announcement-30oct09-en.htm and www.icann.org/en/topics/idn), the proposal contemplated allowing nations to apply to use non-ASCII script to provide local-language characters for domain names, tentatively scheduled to begin in the middle of last month. According to ICANN Chairman Peter Dengate Thrush: “The coming introduction of non-Latin characters represents the biggest technical change to the Internet since it was created four decades ago” (see, www.icann.org/en/announcements/announcement-30oct09-en.htm).

Of course, change can be expensive. With “100,000 characters of the languages of the world” available, in ICANN's estimation, brand owners who have worried about spending to protect their name in multiple domains, whether for different countries or in specialty domains such as .biz, must now contemplate the same questions for different typefaces and countries around the world. Perhaps this is no different than the question of whether the additional protection of registering trademarks internationally justifies the potentially substantial expense, but the risk of being foreclosed out of significant markets makes the choice an important one. In addition, brand managers must soon weigh the potential costs of dealing with cybersquatters, but in new domains where procedures have not yet been established to protect the rights of trademark owners in a cost-efficient manner, as has already occurred in existing domains. Also, the infrastructure to support such language characters must exist, such as hardware, keyboards and other peripherals that will use the new typefaces (although presumably it already exists wherever such languages are used). (See, www.inc.com/news/articles/2009/11/icann.html.)

Yet haven't we seen this problem before? Most recently, in June, many marketers worked through the night to reserve Facebook.com's “user names” when it allowed companies to acquire them individually earlier in 2009. Similarly (but with less apparent attention), ICANN had a year earlier announced a program to permit customized domain name extensions (see, www.icann.org/en/topics/new-gtld-program.htm).

However, these new marketing venues should be quite different, once the initial organizational work has been completed. For one, the customized domain-name process involves far more work than simply registering a name, as ICANN describes: “The application for a new gTLD is a much more complex process. An applicant for a new gTLD is, in fact, applying to create and operate a registry business and sign a contract with ICANN” (see, www.icann.org/en/topics/new-gtlds/strategy-faq.htm). In addition, in a world that has grown accustomed to using .com and other existing domains, one can naturally be skeptical about the justification for spending limited funds (especially in these difficult economic times) on the assumption that online shoppers will make the switch to become comfortable using alternative domains.

As for new character-set expansion, however, the attraction of being able to go online in one's own language seems so compelling that e-commerce firms cannot ignore this subject. Even if the full development will take several years, brand firms should begin monitoring the process now and, more important, factor into future budgets the costs of protecting the brand ' including planning for money to cover legal fees. Lawyers, of course, love anything that makes the rules for e-commerce uncertain and which, as a result, requires firms to seek legal advice that may be no more accurate than the predictions in this column (at least until rules are developed for the new procedures).

2. FTC blogging rule implementation. Many writers have fretted about the effect on the Internet of the Federal Trade Commission's (“FTC”) new clarification that its longstanding rules on endorsements apply to bloggers (see, www.ftc.gov/opa/2009/10/endortest.shtm; for an in-depth treatment of the guidance and its application to blogging, see, “Recommendation Marketing in Evolving Social Media Channels: A Rundown of the FTC's Endorsement Guides,” in the October 2009 edition of e-Commerce Law & Strategy; subscribers go to www.ljnonline.com/issues/ljn_ecommerce/26_6/news/152810-1.html). After all, regulation of such statements, even if only in the interest of clarity and full disclosure, seems at odds with the culture of free speech that has flourished in cyberspace, where anonymity is often a crucial part of the attraction.

Yet for all the attention, does anyone really expect that the FTC will be more active in this arena than in any of the other several thousand it regulates? In other words, an agency that has a wide regulatory charge cannot devote the same efforts to every matter and, in fact, may be able to prosecute nothing more than a handful of cases ' it must rely on the in terrorem effect to obtain voluntary compliance. Therefore, one might expect a few well-publicized enforcement efforts to call attention to the new rules ' followed by the same inattention to the problem that existed before the new rules went into effect.

From another perspective, however, the rules represent another toehold for U.S. government regulation of online activity, in contrast to the close supervision seen in other countries. But even that is nothing unusual in our society, because these regulations simply apply common-sense police-power authority to try to ensure full disclosure by online endorsers in the interest of a fair playing field ' a level of government intrusion that our society has tolerated for many years without concern (and that is likely to grow following the scandals exposed in the economic meltdown of 2008-2009).

3. Cash (or lack thereof). Just as in the real-world economy, 2010 (like 2009) will almost certainly be known as the year without cash. Virtually no one has it, either to invest or spend. Cost cutting should remain critical to profitability and survival, and spending ' whether on salaries, capital items or marketing ' will be scrutinized, if not eliminated (which obviously will affect revenues of B2B firms).

In addition, with a particular e-commerce focus, states should continue to accelerate efforts to recover use taxes not paid by online shoppers, as declining sales mean lower sales-tax revenue. Some states have already challenged arguments about tax nexus by claiming that use of in-state affiliates creates a duty for online firms to collect and remit sales tax (see, www.amazon.com/gp/help/customer/display.html?nodeId=468512; www.marketrap.com/article/view_article/91164/california-lawmakers-try-to-sneak-in-sales-tax-on-amazoncom-inc-and-others; and http://newsok.com/e-pay-more-states-pass-an-amazon-law/article/3410673). Other states, such as Ohio and Michigan, use gross-business receipts to compute taxes, rather than income, to make up the difference ' which curiously could help e-commerce firms, and which should have lower expenses (and higher income) than their real-world peers.

Shoppers without disposable income, of course, cannot help e-commerce firms with the revenue side of the profitability equation. Perhaps the economic need to control expenses will force firms to consider cost-saving e-tools that have been widely promoted in the technology press, such as virtualization and “cloud” technology (i.e., relying on the Internet to provide resources and storage, rather than making it available on local computers), but that are not yet widely adopted in business (see, www.law.com/jsp/article.jsp?id=1202435151070&rss=newswire&hbxlogin=1). Of course, similar expectations have remained unfulfilled in the past about technologies for which inventors and promoters tried to win widespread use to reduce travel and meeting costs, such as electronic meetings and data rooms. While one would have expected that the ability to increase profit by cutting costs would have led firms to use such tools long ago, perhaps the inability to pay for actions that must be taken will force them to consider these, and more seriously so, in 2010 ' if they now have the cash to pay for them. If not, then the words of one technology director quoted in the AmLaw Tech Survey 2009 may be prophetic: “We're all trying these technologies that are supposed to be the next great thing to take over IT. And they really do help. But none is a cure for spending money, which is what our leadership wants” (see, www.law.com/jsp/article.jsp?id=1202435151070&rss=newswire&hbxlogin=1).

4. What to do with social media? In prior years, so-called “social media,” such as Facebook, LinkedIn, Twitter and similar Web sites, has often appeared on lists such as this one as “the next big thing.” Today, of course, there can be no question that such sites are here to stay ' whether system administrators (much less business leaders) like it or not.

But the most pressing questions for business leaders, in the for-profit and non-profit sector, remain: “What to do with it?” and “How do we manage it?” While a firm may be thrilled to have many people following its online presence, a much greater challenge remains in finding a way to monetize that interest.

At a different level, firms that have been resistant to social media in the workplace, on the assumption that it is nothing more than a diversion from the “real work” the companies' employees earn a wage to do, must also consider whether that work could be done better and more efficiently with access to social media. For example, diligence about one's markets, competitors and (in litigation) adversaries has always been important. In an era of “unprotected disclosure” of one's personal life on social-media sites, failing to check them could leave critical information unturned or, worse, allow an employer to be surprised and embarrassed by inappropriate material that one of its own employees has posted online (see, for example, “The Cult of Personality: How Building Your Brand with Social Networking Can Destroy It,” in the August 2009 edition of e-Commerce Law and Strategy; subscribers, go to www.ljnonline.com/issues/ljn_ecommerce/26_4/news/152453-1.html).

More positively, I see social media as a search for the communities that no longer exist in our lives, as our workplaces and neighborhoods have been shattered by layoffs, fear of crime and, simply but quite effectively, the cubicle isolation of the knowledge-economy worker. In such a world, using social media to connect with long-lost classmates or friends (who may turn out to become potential clients or customers) is simply an adaptation of old ways of finding people and information to the methods and places in which we live our lives today. When one identifies oneself as an attorney when socializing at a home-and-school meeting, or at a Web site for one's grade-school class reunion, he or she is marketing herself or himself, or the person's firm, while simply catching up with people he or she once knew.

While none of us knows if this type of marketing will produce enough work to cover the time and expense necessary to create it, I do not think that anyone could argue that these efforts are not worth considering. Within my own firm, for example, our technology committee is having a spirited debate between those who have obtained potential referrals through their “personal” participation from home on social-media sites (which are blocked on our office network), and the system administrators who generally fear abuse and unknown harms that could arise if employees had unfettered access to such sites.

Much like the now-unimaginable 1990s debates over whether to provide e-mail or Internet access in a business setting, a continuing challenge in 2010 will be what to do with such access to further a firm's goals ' and how to do it better than one's competitors, who will certainly be doing the same.

5. Possible vs. permitted. Underlying several of the topics on this list is a growing tension in Internet law between what the technology makes possible ' at times, a subject that appears to be without limit ' and what the law and/or social mores permit business to do with that technology. For example, consider the regrets after it was discovered that a health-club shooter had disclosed his plans in an online posting, which no one thought to bring to the attention of authorities, if, indeed, anyone had seen it, or believed it (see, www.abajournal.com/news/shooter and www.abajournal.com/news/gym_gunman_was_systems_analyst_at_kl_gates). Should we allow ' or require ' authorities to continually monitor online postings for such warnings, or for example, for terrorist information, despite our traditional concern about such “Big Brother” activity? Similarly, but less menacingly, an unhappy tenant's tweets of complaint about her apartment recently led to a defamation lawsuit against her by her landlord, which discovered the tweets during due diligence in a lawsuit against it by the disaffected tenant (see, www.abajournal.com/news/tenant_sued_by_landlord_for_50k_over_tweet). And, from the you-should-have-known-better-than-to-ask-permission department, a recent Philadelphia Bar Association ethics opinion addressed the propriety of “friending” an opposing party's witnesses on Facebook.com (see, www.padisciplinaryboard.org/newsletters/2009/july.php, and www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion_2009-2.pdf).

Certainly, lawyers and businesspersons alike have always had to confront the dichotomy found among the possible, the prohibited and the permitted, so this is not a unique hot topic for 2010. However, with the developments in technology affecting e-commerce specifically and online business generally, in 2010 that conflict will be as close as one's desktop, and as omnipresent as one's Internet connection.

6. Discounting strikes back. In mid-2007, the U.S. Supreme Court issued a significant decision upholding long-standing law that allows manufacturers to require resellers to set a minimum price for their products, as a tool to protect the brand, its image and goodwill. In other words, the e-commerce seller with significant cost advantages can legally be required by a manufacturer to charge the same price as the overhead-laden bricks-and-mortar retailer.

Yet perhaps due to the economic pressures of the last year and the need for increased sales, major sellers in 2009, even of luxury goods, began holding short-term online sales. As reported in The Wall Street Journal, firms such as Saks and Yves Saint Laurent, and newcomers Gilt.com, Ruelala.com and Hautelook.com held limited-time sales, or “invitation only” events, to attract shoppers without undercutting the upscale image and brand supported by the minimum-pricing structure. Some states have even passed laws limiting such minimum-pricing requirements (see, http://online.wsj.com/article/SB124087840110661643.html). With the continuing weakness in the economy, however, it remains to be seen whether more online sellers will follow the path blazed by Saks and the newcomers ' even at the risk of losing suppliers (e.g., http://blogs.computerworld.com/14842/online_retailer_sees_red_over_minimum_pricing), or whether firms that have never considered discounting will be able to stand by their position, despite possibly losing sales and customers to online sellers willing to earn less profit (see, http://online.wsj.com/article/SB123007559680631543.html). (For more information on why some firms won't sell online, regardless of price, see, “Offline and Happy to Be There: The Law Offers Merchants Protection When Their Goods End Up Online Anyway,” in the November2004 edition of e-Commerce Law & Strategy; subscribers, go to www.ljnonline.com/issues/ljn_ecommerce/21_7/news/143420-1.html.)

Similarly, will other states follow the lead of Maryland, where a law prohibiting manufacturers from requiring retailers to sell the manufacturers' goods at minimum prices went into effect on Oct. 1, and act to benefit consumers (and e-commerce sellers) by restricting manufacturers from requiring minimum resale prices? Or will they continue to allow the status quo endorsed in 2007 by the U.S. Supreme Court when it upheld restrictions against discounting to promote brand building?

7. As time goes by. It has often been said that perhaps the only constant factor about the Internet (and about e-commerce as well) is change ' the markets and the technology continue to evolve. But change can be disruptive and, in some cases, online shoppers would like things to stay just where they are, such as with bookmarks and reference materials.

But that doesn't always happen, as Web addresses change and firms change, and as a host of other events could cause a valid link to cease to work. The problem of so-called “link rot” certainly doesn't rise to the level of any of the other concerns mentioned in this article, but it can be inconvenient (if one has to locate the new link) (see, www.uscourts.gov/ttb/2009-07/article09.cfm?WT.cg_n=TTB&WT.cg_s=July09_article09_newsroom, and http://en.wikipedia.org/wiki/Link_rot; http://en.wikipedia.org/wiki/Wikipedia:Linkrot). But in a world that relies on online sources for information and business, it can, even worse, cause a loss of business, if, for instance, shoppers pointed to a non-functioning link from another site or an old message give up and take their business elsewhere. As e-commerce Web sites mature, keeping online customers by improving the shopping experience to eliminate link rot could become a new challenge.

8. The bricks and mortar strike back. This concern reflects my own continuing confusion about why the behemoths of the real world, with all the advantages (and costs, of course) of physical locations, live employees, and decades of brand image and goodwill, allowed unknown, unproven e-commerce firms to get a foothold in their marketplace. If I were an established retailer (albeit one with 20-20 hindsight), I might try to defend my position against online sellers by allowing buyers to shop online, but pick up and return at my physical locations, if they prefer to do so; Wal-Mart, for example, has a ship-to-store option that allows one to avoid shipping costs (a major factor in online sales). As companies struggle to survive in a difficult economy, perhaps 2010 will see the bricks-and-mortar sellers try to merge their real-world advantages of convenience and security with the larger inventories found online, in a competition for the dwindling customer base.

9. Non-profits do e-commerce, too. While again perhaps not a new development in 2010, I think we will see an increasing use of e-commerce strategies by non-profits. After all, as I discussed in my October 2009 column on virtual museums, and in an earlier column on promoting religions online, non-profits use the Internet to further their financial and membership goals just the same as any for-profit business does (see, “The Virtual Museum: If You 'Put It Up,' Will People Come?” and “e-Battling Demons and Other Woes: Selling Religion Online,” respectively; subscribers, go to, respectively, www.ljnonline.com/issues/ljn_ecommerce/26_6/news/152814-1.html, and www.ljnonline.com/issues/ljn_ecommerce/24_9/news/149773-1.html).

For example, I recently attended a presentation by the communications director for a large Catholic archdiocese that has ventured heavily into social media for evangelization. The cardinal who leads that diocese has championed using all of today's technologies to “be out there” and “be everywhere” to “reach people where they are,” when traditional methods, such as weekly bulletins, have become less effective for today's lifestyles of parishioners. Similarly, I recently attended an online seminar at which the Lance Armstrong Foundation explained how it uses many forms of social media extensively to build its Livestrong campaign (see, www.slideshare.net/JeffTe/social-media-strategy-at-lance-armstrong-foundation-naydo-blackbaud-webinar-november-2009). While most non-profits will not be able to afford someone on staff who is familiar with marketing and doing business online (or who can devote the time to do it), many of the tools used by e-commerce firms are readily available, at low or minimal cost.

The prediction, therefore, is not that non-profits will begin to use e-commerce strategies ' the larger and more sophisticated ones are already there; instead, I predict that just as e-commerce in the for-profit sector migrated from the “early adopters” ' the largest firms, and the cutting-edge firms, such as Amazon.com ' to business in general, 2010 will see an increasing number of non-profits move beyond so-called brochureware Web sites to more innovative and interactive using online technologies to expand and advance their purposes and mission.

10. Same time, next decade. Virtually every year-end prediction article acknowledges that the world will probably turn out differently, in ways that the author could not imagine. I, too, will adopt that theme, but with a twist: I don't think much of what I have predicted is fundamentally “new.” Instead, many of the “top 10 technology trends for 2000″ as reported in Red Herring Communications' 2000 = Top Technology Trends (to pick a dot-com era thought leader) are, in one form or another, the same underlying concerns for e-commerce firms today, albeit ones that are playing out in new formats. In other words, while there will always be truly transformative technologies that appear unexpectedly ' the World Wide Web itself, for example ' I think that the growth of e-commerce law has been more of a continuous development of largely traditional concepts that became more refined as the technology grew and improved over time. For example, some of the trends highlighted by Red Herring in November 1999 (when everyone was worrying about a multitude of supposedly looming Y2K disasters) included:

• The personalization of the consumer experience;
• The combination of online and bricks-and-mortar businesses;
• The “land grabs” as business firms try to establish their positions in e-commerce; and
• The opportunities in emerging markets of China and Europe (an analog of the non-Latin character question).

All these were different aspects, at some level, of one of the concerns I have raised above.

Does that mean that the old predictions were wrong? Of course not; it means only that the challenges the Internet and e-commerce pose to businesses, new and old alike, remain relatively constant as technology develops, even if the particular nuances may vary from year to year, depending on the latest hot innovation.

Perhaps writers who are producing prediction columns should not describe their lists as what will be important in the coming year, but instead focus on predicting what should be important (whether or not the business world develops in that direction) in the future, whether near or far.

So as 2009 comes to a close, I invite our readers to think about the items in this list; I am encouraging my own firm's clients to do so. But I also invite those reading this in the future not to laugh too much, not because the predictions proved wrong, but because the e-commerce executives of 2020 will still be trying to work out the same basic online business concerns.