Recently, professors from the University of California, Berkeley and the University of Pennsylvania introduced a new survey evaluating consumers’ feelings regarding online tracking. As it turns out, almost two-thirds of those polled oppose online tracking by advertisers. Specifically the survey polled over 1,000 adult Internet users in the context of a twenty-minute interview, asking such questions like “Please tell me whether or not you want the Web sites you visit to give you discounts that are tailored to your interests.” While more than 66% of those polled objected to such online tracking, that percentage increased when the surveyors introduced particular targeting methods (for instance, an additional 18% objected to being tracked via other websites, while an additional 20% objected to being tracked offline).

Although the online tracking survey allegedly is the “first independent, nationally representative telephone survey on behavioral advertising,” the subject of online tracking and its impact on individual privacy rights has been around for a while. The tremendously popular social networking website Facebook encountered serious opposition in the form of mass member protests when it introduced its Beacon advertising system in November 2007. The program sends messages to users’ friends about what they are buying and viewing on the Internet. Although the Beacon system represents a much more transparent approach than other companies utilizing online tracking software, such as Google and AOL, within ten days of its introduction more than 50,000 Facebook users signed a petition against the new software. While those in the digital advertising industry found the Facebook community reaction “hypocritical” and “paradoxical,” Facebook users themselves spoke out against such intrusions on their right to privacy: “[T]here still should be a certain morality here, a certain level of what is private in our lives. Just because I belong to Facebook, do I now have to be careful about everything else I do on the Internet?”

Clearly, resistance movements to online tracking software operate at the grassroots level; however, more recently (and perhaps more importantly) the debate over the appropriate level of online privacy has moved into the legislative and legal arena. This past June, Sears Holdings Management Corporation, owned by Sears, Roebuck and Company and Kmart Management Corporation, settled its dispute with the Federal Trade Commission (FTC) regarding the company’s controversial online tracking software. The FTC charged Sears with failing to sufficiently disclose the extensive scope of personal information its software application collected on consumers. Although Sears represented to consumers that its new online tracking software would only follow their “online browsing” and “always on your terms and always by your choice,” the FTC charged that the software also “monitored consumers’ secure sessions–including on third parties’ websites–and collected information transmitted in those sessions, such as the contents of shopping carts, online bank statements, drug prescription records, video rental records, library browsing histories, and the sender, recipient, subject and size for web-based e-mails.”

The proposed settlement required Sears to destroy all information previously collected; furthermore, any tracking software in the future must “clearly and prominently” disclose the type of data the software will record. Beginning on July 6, 2009 and continuing for 30 days thereafter, the FTC agreement was subject to public comment. On September 9, 2009 the FTC approved the final consent order requiring Sears to disclose any future installment of tracking software placed on its consumers’ computers.

Just a few days before the FTC announced its approval, a coalition of 10 consumer and privacy advocacy organizations called on Congress “to enact legislation to protect consumer privacy in response to the growing practices of online behavioral tracking and targeting. In a letter to Representatives Henry Waxman (D-Calif.) and Joe Barton of Texas (chairman and ranking Republican of the House Energy and Commerce Committee), the organizations invoked the U.S. Constitution in arguing against online tracking: “Privacy is a fundamental right in the United States. For four decades, the foundation of U.S. privacy policies has been based on Fair Information Practices: collection limitation, data quality, purpose specification, use limitation, security safeguards, openness, individual participation, and accountability.”

The new survey introduced last week represents one of many efforts to highlight the battle waging between online tracking by digital advertising agencies and the constitutionally guaranteed right of privacy–battles that are taking place on the Hill, inside the courtroom, and across the board. Although there seems to be no real end in sight, in the meantime, be careful what you search for . . . .

Jaci Thomson

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One Response to Waging War: Online Tracking vs. Right of Privacy

  1. thanks for such a useful information.