Behavioural targeting is flavour of the month if not the year for marketers on both sides of the pond, but in the US there has been a consumer backlash. Melissa Geffert reports from Osborne Clarke’s Silicon Valley office on calls for a national “Do not track list”.
Who: Center for Democracy and Technology, Consumer Federation of America and others
When: October 2007
Law stated as at: 30 November 2007
Nine consumer privacy organizations on 24 October asked the Federal Trade Commission (FTC) to create a list of consumers who do not want their online behaviour tracked for advertising and other purposes, similar to the national "Do Not Call" list the FTC operates to prevent cold calls from telemarketers.
Behavioural advertising tracks which websites and other information consumers seek on the Internet, and then uses that data to serve more relevant ads.
Supporters of the proposed "Do Not Track List" include the Center for Democracy and Technology, Consumer Action, Consumer Federation of America, Electronic Frontier Foundation, Privacy Activism, Public Information Research, Privacy Journal, Privacy Rights Clearing house and World Privacy Forum.
The organizations' proposal calls for a new definition of "'personally identifiable information' updated to reflect the realities of today's Internet"; more robust disclosures on tracking to consumers; independent auditing of companies engaged in tracking; a prohibition on collection of personally identifiable data related to health and financial activities; and the establishment of a national "Online Consumer Protection Advisory Committee."
"Online opt-outs should be as well-known and as easy as the Do Not Call list," said Mark Cooper, director of research at the Consumer Federation of America.
The idea is that consumers could opt-out of having their online activities monitored by "persistent tracking technologies". This was not expanded upon, but the idea is that companies would still be able send ads to consumers on the list, but servers would be required to block online tracking of consumers.
So this is not the end of online advertising in the USA, but the risk for companies that rely on this type of "tracking" data is that a substantial revenue source will be cut off if this initiative is taken seriously be regulators and legislators.
Steve K Berry of the Direct Marketing Association called the do not track list a solution waiting for a problem. He says "Such a list would significantly undermine the successful business model of the internet by limiting benefits to consumers, stifling innovation and eliminating the valuable and effective marketing-supported content".
Why this matters:
Behavioural targeting is the next big thing on both sides of the pond. Europe has no "Do not track" lists but one issue in Europe is whether the relevant technology falls within the Privacy and Electronic Communications Directive, implemented in the UK by the Privacy and Electronic Communications (EC Directive) Regulations 2003.
The "Confidentiality of Communications" Regulation 6 states that a person shall not use an electronic communications network to store information or to gain access to information stored in the terminal equipment of a subscriber or user unless certain requirements are fulfilled. These are that the subscriber/user is given "clear and comprehensive information about the purposes of the storage or, or access to, that information and is given the opportunity to refuse that access or storage.
It should be noted that these provisions apply regardless of whether the activity involves the processing of "personal data" as defined by related but separate data protection legislation. On the face of it therefore it seems likely these provisions would apply so that those using this technology should take this into account in their website privacy policies. Whether vigilance on this front will be sufficient to ward off a movement here in Europe for a "Do not track" list remains to be seen.