Category: online lead generation

Ad Industry Lawyer Spins in Ad Age that Privacy Will Be on “Back Burner.” Not Only Incorrect–but self-serving

This week’s Advertising Age has a “Legal Issues to Watch in 2009” column.  Written by Douglas J. Wood of Reed Smith, it claims that: “PRIVACY TO THE BACK BURNER- Congress and regulators are in a Catch-22: While under constant pressure from constituents and consumerists to curtail the use of personal information or behavioral targeting, they recognize that advertising is the backbone of the internet. So while there will be occasional skirmishes, the war on privacy will continue in its stalemate. Regulators will also see browser makers offering more control to consumers to block ads and the collection of personal information as adequate progress.”

Mr. Wood, it turns out is “a member of Reed Smith’s Executive Committee and the firm’s Advertising Technology & Media Group…and is General Counsel to both the Association of National Advertisers and the Advertising Research Foundation.”

Perhaps Mr. Wood is too busy to really follow Hill and FTC developments, because he is wrong.  There will be considerable activity on the Hill and elsewhere.   His column should have been labeled as written by the lawyer for the ad industry lobby group.  But it does reflect a lack of insight about the online ad industry’s problems related to privacy and consumer protection.

The “Revised” Network Advertising Initiative Principles: Ghost-written by Bernard Madoff?

That was really what we felt reading the “NAI Response to Public Comments” released yesterday.  It accompanied the 2008 principles announcement by the self-regulatory trade online marketing trade group.  The “response” is worth reading, because it really reveals the inability of the group to meaningfully address how to protect consumers online.  You would think that an organization which has Microsoft, Google, Yahoo, Time Warner and many others as paying members could at least clearly state what happens to our data in the online marketing process.  But the real goal of the NAI is to prevent the enactment of serious state and federal privacy policies that would protect consumers. My group put out a statement yesterday discussing the new principles.

The credibility of Google, Microsoft, Yahoo and Time Warner are at stake.  They should be able to ensure that their own organization can honestly address the implications of online advertising.  But it’s time to abandon any call for self-regulation.  That has been a failure.  It’s clear that a growing number of consumer and privacy groups are calling for a legislative solution, as well as a more effective FTC.  Responsible online ad companies will support such regulation.

New AT&T-funded “Future of Privacy” Group: Will it Support Real Privacy Protection or Serve as a Surrogate for Self-regulation and Data Collection?

A new group co-directed by former DoubleClick and AOL chief privacy officer Jules Polonetsky, called the “Future of Privacy Forum,” has been announced. It is connected to the law firm representing AT&T–Proskauer Rose–which has a considerable practice in the online marketing and data collection area. Other backers include Intel, General Electric, IBM and Wal-Mart.

We are concerned, however, that the role of the Forum is to help discourage Congress from enacting an opt-in regime for data collection. Both ISPs–such as AT&T, Verizon, Comcast and Time Warner–as well as online advertising companies such as Google/DoubleClick, Yahoo, and Microsoft must be governed by privacy laws which empower and protect consumers. The role of ISPs in any data collection for targeted online marketing, in particular, requires serious analysis and stringent safeguards. AT&T, Google, Microsoft, Comcast, the online ad networks, and social media marketers (to name a few) must be required to provide meaningful disclosure, transparency, accountability and user control (with special rules governing health, financial and data involving children and youth). Self-regulation has failed. If the Future of Privacy group is to have any legitimacy, it will work to support serious federal rules. But if it trots out some sort of voluntary code of conduct as a way to undermine the growing call for real privacy safeguards, this new group may soon be viewed as beholden to its funders and backers.

Interactive Ad Bureau to Congress and Public: If Your Privacy is Protected, The Internet Will Fail Like Wall Street!

It’s too disquieting a time in the U.S. to dismiss what a lobbyist for the Interactive Advertising Bureau said as merely silly. The IAB lobbyist is quoted in today’s Washington Post saying: “If Congress required ‘opt in’ today, Congress would be back in tomorrow writing an Internet bailout bill. Every advertising platform and business model would be put at risk.” [reg. required]

Why is the IAB afraid of honest consumer disclosure and consumer control? If online ad leaders can’t imagine a world where the industry still makes lots of money–while simultaneously respecting consumer privacy–perhaps they should choose another profession (say investment banking!).

Seriously, online ad leaders need to acknowledge that reasonable federal rules are required that safeguard consumers (with meaningful policies especially protecting children and adolescents, as well as adult financial, health, and political data). The industry doesn’t need a bail-out. But its leaders should `opt-in’ to a responsible position for online consumer privacy protection.

Behavioral Targeters Use Our Online Data to Track Our Actions and, They Say, to “Automate Serendipity.” Attention: FTC, Congress, EU, State AG’s, and Everyone Else Who Cares About Consumer Welfare (let alone issues related to public health and ethics!)

NPR’s On the Media co-host and Ad Age columnist Bob Garfield provides policymakers and advocates with an arsenal of new material that support the passage of digital age consumer protection laws. In his Ad Age essay [“Your Data With Destiny.” sub required], Garfield has this incredibly revealing–and disturbing–quote from behavioral targeting industry leader Dave Morgan (Tacoda) [our emphasis]:

“Now we have the ability to automate serendipity,” says Dave Morgan, founder of Tacoda, the behavioral-marketing firm sold to AOL in 2007 for a reported $275 million. “Consumers may know things they think they want, but they don’t know for sure what they might want.”

Garfield writes that “In 2006 Tacoda did a project for Panasonic in which it scrutinized the online behavior of millions of internet users — not a sample of 1,200 subjects to project a result against the whole population within a statistical margin of error; this was actual millions. Then it broke down that population’s surfing behavior according to 400-some criteria: media choices, last site visited, search terms, etc. It then ranked all of those behaviors according to correlation with flat-screen-TV purchase…“We no longer have to rely on old cultural prophecies as to who is the right consumer for the right message,” Morgan says. “It no longer has to be microsample-based [à la Nielsen or Simmons]. We now have [total-population] data, and that changes everything. With [those] data, you can know essentially everything. You can find out all the things that are nonintuitive or counterintuitive that are excellent predictors. … There’s a lot of power in that.”

There’s more in the piece, including what eBay is doing. As the annual Advertising Week fest begins in New York, we hope the leaders of the ad industry will take time to reflect on what they are creating. You cannot have a largely invisible system which tracks and analyzes our online and interactive behaviors and relationships, and then engages in all manner of stealth efforts to get individuals (including adolescents and kids) to act, think or feel in some desired way. Such a system requires rules which make the transaction entirely transparent and controlled by the individual. The ad industry must show some responsibility here.

Behavioral Targeting Lawsuit Illuminates How Data is Collected From You

Look for a moment at an excerpt from a legal tangle between behavioral targeting companies Valueclick and Tacoda (the latter now owned by Time Warner). Valueclick filed suit on July 15 claiming patent infringements, including for one entitled “Method and Apparatus for Determining Behavioral Profile of a User.” Read the “Abstract” and part of the “Summary of the Invention” for this patent and think about your privacy (and that this is based on 1998 technology!):“Abstract: Computer network method and apparatus provides targeting of appropriate audience based on psychographic or behavioral profiles of end users. The psychographic profile is formed by recording computer activity and viewing habits of the end user. Content of categories of interest and display format in each category are revealed by the psychographic profile, based on user viewing of agate information. Using the profile (with or without additional user demographics), advertisements are displayed to appropriately selected users. Based on regression analysis of recorded responses of a first set of users viewing the advertisements, the target user profile is refined. Viewing by and regression analysis of recorded responses of subsequent sets of users continually auto-target and customizes ads for the optimal end user audience.”

Summary Of The Invention: …Over time, the tracking and profiling member holds a history and/or pattern of user activity which in turn is interpreted as a users habits and/or preferences. To that end, a psychographic profile is inferred from the recorded activities in the tracking and profiling member. Further, the tracking and profiling member records presentation (formal) preferences of the users based on user viewing activity. Preferences with respect to color schemes, text size, shapes, and the like are recorded as part of the psychographic profile of a user…The tracking and profiling member also records demographics of each user. As a result, the data assembly is able to transmit advertisements for display to users based on psychographic and demographic profiles of the user to provide targeted marketing.”
source: Complaint for Patent Infringement: Jury Trial Demanded. Valueclick, Inc. v, Tacoda, Inc. Case No. CV08-04619 DSF. U.S. District Court, Central District of California, Western Division.

The Federal Trade Commission at “100”–A Serious Commitment to Protect Consumers is Required

This week, the FTC organized a “public roundtable” that is part of a process it calls “FTC at 100: Into Our Second Century.” Through panels and what it calls “self-assessment,” the FTC under its new chairman Bill Kovaciac has asked such questions as: “How well is the FTC fulfilling the destiny that Congress foresaw for it in 1914? What type of institution should it aspire to be when the Commission’s second century begins in 2014?”

But the two-day panel session illustrates what is wrong with the FTC. It is an agency generally afraid to represent the interests of consumers–think about the mortgage meltdown, skyrocketing oil and gas prices, and the lack of privacy online. The panels consist primarily of commission staff, former officials (who are now, given the FTC’s golden revolving door, primarily representing industry). There is only one consumer advocate (from CDT, which gets corporate funding) and one state AG official. There are a few academics, including those working at corporate-funded thinktanks. Participation by consumer groups and independent academic experts are simply not on the FTC’s agenda.

We have found the FTC to be a generally timid government agency–largely incapable of keeping up–let alone addressing on behalf of consumers–what industry is doing (especially with the areas I cover in digital communications ). There are good people at the agency, but they are tethered to a system that prevents consumer welfare from being truly protected.

A consumer-focused perspective–currently missing from the agency–would have included a serious discussion at this event by consumer advocates and academics who have actually studied and thought about the consumer movement in the U.S. The failure to do so reflects a serious failure by the FTC’s current leadership to ensure a broad and informed debate as it plans for the future.
The next FTC requires a chairperson and new commissioners who sees the agency’s mission working proactively on behalf of the public.

The IAB (US) “mobilizes” to Fight Against Consumer Protections for Online Media

Watch this online video of Randall Rothenberg speaking before a June Federated Media Publishing event. In Mr. Rothenberg’s worldview, demon critics of advertising (such as myself) are deliberately trying to undermine democratic digital media. This would be absurd, if it wasn’t so sad. Mr. Rothenberg is using scare tactics to whip up his members into a frenzy-all so they can fight off laws and regulations designed to provide consumers real control over their data and information. Luckily, Mr. Rothenberg will be on the losing side of this battle to protect consumers in the digital era. Regulators on both sides of the Atlantic understand how the digital marketing ecosystem raises serious concerns about privacy and consumer welfare. We have to say we are disappointed in John Battelle, the CEO of Federated (who wrote a very good book entitled The Search: How Google and Its Rivals Rewrote the Rules of Business and Transformed Our Culture). Mr. Battelle should know that the online marketing system requires a series of safeguards which protects citizens and consumers. There is a balance to be struck here. Online advertisers have unleashed some of the most powerful tools designed to track, analyze, and target individuals–whether on social networks, or watching broadband video, or using mobile devices. We have never said there shouldn’t be advertising. We understand the important role it must play, including for the underwriting of online content. But the online ad system should not be designed and controlled solely by ad networks, online publishers, trade groups and online ad lobbying groups. It must be structured in a way which promotes as much freedom for individuals.

The IAB Can’t Say the Word “Privacy” Before the U.S. Congress

On Wednesday, IAB president Randall Rothenberg testified before a House Small Business subcommittee. Incredibly, the written testimony failed to mention privacy. Nor did the testimony really convey the nature of interactive advertising today. We will be contacting the subcommittee to set the record straight. And the IAB has to do some serious soul-searching. As more people become informed about the data collection and targeting practices underlying digital marketing, they will expect that companies doing business online are engaged in ethical data collection practices. This will be especially true when it comes to protecting the privacy and consumer welfare of children and teens.

PS: This excerpt from Mr. Rothenberg’s testimony is another illustration of how out of touch the IAB has become. They can’t acknowledge the industry’s problems and offer reasonable solutions. The IAB is also going to hurt small business, once customers learn how their privacy is threatened (and how online advertising raises medical and financial data issues, for example). Perhaps someone will come along offering responsible leadership on this issue for small business. They aren’t getting it from the IAB’s lobbying campaign. Once again, no one is saying there shouldn’t be online advertising. But we are saying that privacy has to be protected–where consumers are in charge of what is collected. And that some practices–including data collection and targeting of children and adolescents as well as sectors such as medical information–require safeguards. But the IAB’s leadership has decided to use the “Chicken Little, Our Data Won’t Be Falling” scare tactic.

“A small but vocal coterie of forces opposed generally to marketing, advertising, and open media markets is attempting to advocate to limit the technology responsible for this internet advertising revolution.

Although these advocacy groups have provided no evidence of public harm, their efforts have begun resulting in regulatory proposals which, if enacted, would severely hinder the ability of small publishers to support themselves with advertising sales, and impair the ability of small businesses to use interactive advertising to market themselves.”

Congress and Anti-trust Officials Must Take Action on Google-Yahoo! Deal: Competition and Privacy Issues at Stake

The government must take swift action to prevent the creation of a digital combine that merges assets and services of the first and second leading online search advertising companies—Google and Yahoo!
Google is the country’s (and world’s) leading search firm. Yahoo is ranked number two and says it is the foremost online display advertising company. This combination potentially threatens user privacy, as more data (including behavioral and mobile) about consumers are shared or pooled by the two leading online giants. Competition in the online ad sector—already weakened by a series of takeovers and acquisitions—is seriously threatened. This deal will have a significant impact on the advertising industry, including agencies. Both Google and Yahoo also provide critical search advertising services for many of the nation’s leading newspapers. Congress will need to explore how this deal impacts journalism, especially at a crucial marketplace juncture for the traditional media industries. Yahoo is permitting Google to extend its reach into one its significant assets–paid search. Shareholders will also suffer, as Yahoo! will be viewed by advertisers as a less effective means to target consumers.

Statement on behalf of the Center for Digital Democracy