We Are the Web
Common Sense for Online Profiling and Privacy
Online advertising has exploded in recent months, both in business terms and in concerns about the effect of new ad technologies on privacy. There has been a wave of proposed or actual mergers led by Google Inc., the biggest online search and text advertising company, which is seeking to merge with DoubleClick Inc., the biggest display ad company.
To try to learn about these emerging technologies, the Federal Trade Commission recently held a Town Hall event. The event produced little consensus. Privacy advocates criticized the new types of online profiling. Industry mostly explained why profiling is good because people will see only the ads for things they are interested in.
At the Town Hall, along with my written testimony, I proposed a common-sense test for what should happen—individuals should have a realistic way to choose not to be profiled when they go online.
Repeated polling shows that millions of Americans don’t want to have detailed and permanent profiling of their surfing habits.
Current practices on the Web often don’t meet this simple test. For instance, the Network Advertising Initiative operates a web site that lets you stop DoubleClick and similar cookies from following you across the Net. Although the NAI opt-out tool has worked for me, I spoke with an FTC attorney at the Town Hall who had spent nearly an hour online the night before. She had tried without success to get the NAI opt-out to work for her. If it’s too hard for smart attorneys trying to opt out as part of their job, then it’s not a good enough system.
I learned the common-sense test when I worked on privacy in the White House under President Clinton. It was a huge help when we could say that individuals had a choice. One example was the financial privacy law in 1999. Under the law, individuals gained the choice not to have their personal information sent to outside marketers.
Another example was in 2000, when there was a cookie problem on the White House website. We created a policy that tracking cookies would be set only with the choice of the surfer.
On a political level, these measures worked—the administration could explain that individuals had a realistic choice about how their data would be handled. These measures also basically worked at the policy level. The reason: People who cared a lot about their privacy now had a way to say no to certain practices. (We later pushed for stronger financial privacy protections, but at least the 1999 law contained some important privacy measures.)
People in the advertising industry, understandably, don’t want to face burdensome regulations on their new business models. They believe targeted ads, based on detailed profiling of surfing habits, will be more profitable for companies. They say that consumers will benefit by seeing more relevant ads. They argue that profiling is benign because it only determines which ads get served to the desktop.
There are two major problems with that position, however. First, in our post-Patriot Act world, records can quite easily end up in government hands. The government can now use National Security Letters, so called Section 215 orders, and other tools to see the surfing records, often without any notice to the individual concerned.
Second, repeated polling shows that millions of Americans don’t want to have detailed and permanent profiling of their surfing habits. Some people are spooked by the risk that the government might be looking over their shoulders. Others simply want to surf without leaving detailed records in the hands of multiple company databases.
In short, there are good reasons for leaders in technology and E-commerce to find realistic ways for consumers to have a choice. I personally think, for instance, that search engines should have an option not to link my current search with previous searches. Ask.com has announced plans for this option, but the practices of other search engines vary widely.
Industry leaders should listen to the privacy concerns and come up with workable ways for consumers to get what they prefer when it comes to online profiling. Some consumers will love personalization and want online companies to know everything about them. Some consumers won’t care one way or the other. But some consumers don’t like the idea of their search requests and surfing habits being stored out of their control.
In the long run, the press and the political system are likely to push back whenever detailed profiling becomes a mandatory part of surfing the Web. It is common sense to build user-friendly systems from the start.
Peter Swire is a Senior Fellow at the Center for American Progress and the C. William O’Neil Professor at the Moritz College of Law of the Ohio State University. From 1999 to early 2001, he served as Chief Counselor for Privacy in the U.S. Office of Management & Budget.
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