Consumer Groups Want Constraints on Online Behavioral Advertising

In letters to top lawmakers Tuesday, consumer groups argued for various legal constraints on online-targeted behavioral advertising in the interest of protecting consumer privacy, particulary children and teens.

But they also said their goal goes beyond that marketing to privacy concerns involving the whole "digital ecosystem," including social media marketing and the integration of online and offline databases.

"We want consumers to be able to take advantage of all the new technology without having the new technology take advantage of consumers," said Pam Dixon of the World Privacy Forum. "Right now that balance is not there."

The groups' proposals for featuring new privacy legislation would include a ban on collecting or targeting information to anyone under 18, a 24-hour period for use of tracking non-sensitive information online before being required to get opt-in permission, a do-not-track list for behavioral marketing networks similar to the do not call list for telemarketers, and prohibiting the tracking or use of "sensitive" data on health, finances, ethnicity, sexual orientation, personal relationships or political activity to target marketing pitches.

While they provided their suggestions for sensitive data to Congress, they want the Federal Trade Commission to come up with the official definition.

The groups, which include Consumers Union, Consumer Federation of American and the Center For Digital Democracy, also say that personal information should be protected even if the information can't be linked to a person by name, address or other traditional "personally identifiable information," so long as it can be linked to a particular computer.

Targeted marketing companies have often defended their practice by pointing out that the information is not associated with personally identifiable information.

The groups, which unveiled the letters at a press conference in Washington Tuesday, are hoping to influence legislation currently being worked on in the House Communications Subcommittee. Chairman Rick Boucher (D-WVA) has said such a bill was a priority for passage this session, and the chairs and ranking members of the House Commerce Committee and relevant subcommittees have all expressed interest in the bill.

Center For Digital Democracy's Jeff Chester said Tuesday that the input came at the behest of legislators working on the bill, who told them they wanted full participation from the consumer protection community.

"The 24-hour exception is a red herring," says Mike Zaneis, V.P. of public policy, for the Interactive Advertising Bureau. "If there is a legitimate consumer privacy concern with data being used for 23 hours and 59 minutes, then industry is open to addressing that concern. No new concerns automatically arise 61 seconds later."

Dan Jaffe, executive V.P. of government relations, for the Association of National Advertisers, points out that his group and other ad agency associations have already gotten together on self-regulations on behavioral advertising and are preparing a campaign to insure the principles can be enforced and consumers can understand them.

"The principles will become the norm," he says.

Susan Grant of the Consumer Federation of America countered that the industry self-regulatory principles are "totally inadequate." She said, for example, that their definition of sensitive data is so narrow that the only information that couldn't be collected under any circumstances is information on kids under 13.

That means, she said, that according to those guidelines, information could be collected on finance and health. She conceded that a consumer would have to consent, but said that, even then, it was "very dangerous" to ask those consumers to consent to it when there was no limit to how it could be collected and shared, which is why the groups are advocating legislation.

But Jaffe says that legislation is the wrong approach.  "This is a rapidly changing area with a great deal of technological variation and complexity and those are the kinds of areas where legislation is likely not to work well."

He says the consumer groups' proposals are overbroad. For example, he says, if you redefine sensitive information to be all information "you can't be doing anything." He points out that by the time you are 17, kids are about to be able to vote and go into the military and drive cars. "All that they can do, but we can't send them any information
about anything that may be of interest to them?"

Chester insists that privacy can be protected without closing down the Internet or prohibiting online marketers from making a living. "You can have a robust e-commerce system that funds diverse online publishing but also has effective consumer protection and privacy rules."

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.