This article was contributed by Adam Snukal, Esq.
Surfed the web lately? Seen a banner promoting a product, service or trip to Ireland you priced yesterday? Serendipity? Luck? Cookies? Yes, it’s those tiny files placed on your computer when you visit a website. Advertisers can now parse through cookies on your computer when you visit certain websites and instantaneously serve up advertisements based on your historical online behavior—“behavioral marketing.” For some, this is a great convenience. For others, like New York State Assemblyman Richard Brodsky, this is invasive and should be stopped unless the consumer has given consent.
Assemblyman Brodsky sees the acquisition of Doubleclick by Google as a step backward for consumers since the combined company could tap into a reservoir of consumer behavior and search data on an individual basis. So he introduced a bill aimed at restricting Internet behavioral marketing—The Third Party Internet Advertising Consumers’ Bill of Rights Act of 2008—that would prohibit advertisers from collecting and using sensitive, personally identifiable information from users online; require websites to clearly and conspicuously disclose behavioral policies and practices; give consumers the right to opt-out of profiling practices; prevent their online behavior from being collected and used to deliver targeted advertisements; and police how advertisers are permitted to merge and synthesize such information with other data (e.g., merging personally identifiable information collected offline with information collected online). Opponents—some of the largest interactive advertising and media companies—have voiced their opposition in a letter to Assemblyman Brodsky, noting, “Time after time, state laws that have attempted to impose this sort of broad Internet regulation have been struck down by the courts, doing nothing more than making taxpayers bear the expense both of defending the lawsuit and paying the successful plaintiffs’ attorneys fees.”
On the same day it approved the Google-Doubleclick merger, the FTC released proposed guidelines for “individually targeted advertising based on software that tracks a consumer’s activities online” that includes the need for transparency in treatment of consumer privacy in behavioral advertising; reasonable security to protect sensitive consumer data and a requirement to obtain consent from the consumer before collecting his or her data for behavioral marketing.
Industry associations, advertisers, agencies and media companies continue to believe self-regulation remains the best mechanism for dealing with a dynamically evolving, increasingly interactive usergenerated world. Legislation and regulation responding to abuses of a few is often ill-conceived, poorly implemented and obsolete as technology and the marketplace evolve. Curiously, there are examples in the advertising, motion picture and gaming industries that, for decades, have successfully policed and regulated, with government regulation remaining a backstop or safety net when needed. Is anyone out there listening? Perhaps if more lend their voices to the dialogue, meaningful and effective solutions will emerge.