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Privacy Pleas: D.C. Gets Moving

Cable operators, children’s and teen-targeted Websites and others are facing new prohibitions on aiming their ads at online surfers.

Two new bills pushed by Democrats have been introduced that could take a bite out of the burgeoning behavioral ad industry online, including one that would effectively prevent behavioral targeting of ads to kids and even teens. Meantime, Republicans are seeking support for a privacy bill introduced last month that would not implement do not track, would define protected information narrowly and would not put the FTC in charge of enforcing voluntary guidelines.

Both the Commerce Department and the Federal Trade Commission are pushing a form of do not track self-regulatory regime, but with the backstop of government enforcement.

Senator Jay Rockefeller (D-W. Va.) wants that regime to have the backstop of explicit FTC regulatory authority, while Rep. Ed Markey (D.-Mass.) wants a junior version of “do not track” that would ban tracking and targeted marketing of kids and teens.

Those bills follow introduction last month by Sen. John Kerry (D-Mass.) and Sen. John McCain (R-Ariz.) of a bill to protect online—and offline—privacy via a combination of opt-out/opt-in regime for the use of online surfers’ info, opt-out for info used in behavioral targeted marketing, opt-in for sharing sensitive personal info or changes in privacy policies.

The privacy issue is bipartisan to a degree, but the support for particular solutions is not clear-cut. While Joe Barton (R-Tex.) joined with Markey in circulating the draft bill, his colleague on the House Communications Subcommittee, Cliff Stearns (R.-Fla.), has been pushing for legislation that does not contain do not track regimes or enforcement by the Federal Trade Commission.

In a copy of a dear colleague letter obtained by B&C, Stearns last week sought support for an alternative to do not track, a bill he introduced last month that the letter calls a “new and balanced” privacy bill. He had a Democratic cosigner, Tim Matheson of Utah, but he is a conservative “blue dog” Democrat.

The bill (H.R. 1528) would target use of online information collection by third-party ad networks, but would focus on “personally identifiable” information like IP addresses, social security numbers and credit card info, and on providing clear notice about what information was being collected from consumers.

The Markey and Rockefeller bills explicitly create do not track regimes, and the information definitions could be broader. The Rockefeller bill would leave the definition up to the Federal Trade Commission.

And while the FTC has taken no public stand on any legislation, Jeff Chester, executive director of the Center for Digital Democracy, which backs the Rockefeller bill, said he expects it will not be narrow.

The Markey bill, which would prevent behavioral targeted marketing to kids, could prove problematic for marketers in what is a potentially multibillion-dollar space.

Attorney Marc Roth, a partner at Manatt, Phelps & Phillips who specializes in privacy, fears a kids restriction could catch adults in a too-broad net.

Depending on the details of how the do not track regime is set up, it could apply to Websites as well as ISPs. That could mean that marketers targeting parents might not get to do so.

“I think it will largely diminish a cable operator or advertiser’s ability to reach a certain audience,” Roth says. “While they can still target their advertising, as in a media buy for a certain Website, you won’t be able to get the additional, more specific information that is perhaps more current in the marketplace now, where you can get more specific. I do think it diminishes the ability for marketers to communicate directly with consumers who are most relevant.”

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