Can Behavioral Targeting Regulations Balance Privacy and Free Speech?

How do you feel about ads being served up to you according to your web surfing history? On one hand, it only goes to prove Big Brother is watching (as if we didn’t know that). On the other hand, the ads you see are more likely to suit your interests, which might not be a bad thing in the long run — unless you’re surfing a lot of porn at work. 

Here’s an email I received on the matter from MediaPosts’s MediaDailyNews. 

Monday, April 14, 2008 by Wendy Davis

It puts civil libertarians in a difficult position, but the fact is
privacy rights and freedom of speech often end up colliding with each
other. Newspapers print pictures of people who don’t want their photo shown,
political campaigners ring people’s doorbells seeking votes, and Web
sites post the purchase price of home sales. Generally, these
activities are permissible in the
U.S., because First Amendment freedom of speech principles outweigh
whatever privacy interest people think is being compromised.

On the other hand, courts have also upheld restrictions on speech —
especially ads, considered "commercial speech" — in the name of
protecting people from intrusion. Consider the do-not-call list. The
Federal Trade Commisson had to
defend the registry against a First Amendment challenge in federal
court and, at one point, was banned from creating the registry.
Ultimately, the 10th Circuit decided that the agency could go forward
with the registry, but this outcome
wasn’t certain when the case first began.

Now, this clash is coming up again with behavioral targeting — serving
ads to people based on their Web-surfing history. The Newspaper
Association of America late last week filed comments with the FTC
arguing that any rules impeding newspapers’ ability to serve ads to readers would violate newspapers’ First Amendment rights.

Courts have long said that the ability to advertise is a First
Amendment right, but there’s obviously far less precedent about whether
serving ads based on people’s Web-surfing history violates other
rights. Privacy advocates are calling
for limits, saying that at a minimum, companies shouldn’t deploy
behavioral targeting without consumers’ consent — with some advocates
arguing that consumers should explicitly consent via opt-ins.

Much of the legal restrictions might end up turning on whether people
have a reasonable expectation that their Web history is, or should be,
confidential. On one hand, everyone who stops and thinks about it must
surely know that all clicks
leave a digital trail. At the same time, many users simply can’t fathom
that anyone else — ISPs, ad networks, etc. — actually collects that
information, much less analyzes it and then sends ads based on it.

Of course, one way Web companies can help insure people know that
clickstream data is being collected is by posting clear, easy-to-read
privacy policies. And, under the circumstances, asking people to
consent to behavioral targeting,
either by opting in or not opting out, doesn’t seem like the kind of
restriction that would necessarily violate the First Amendment.