NYU Legal Ethics Expert Says FTC Chair Majoras should recuse in Google/Doubleclick review

Before we run this legal comment, we want to make something clear. This is about ensuring transparency and accountability in the process. It’s not about political ideology or trying to affect the outcome of a proceeding. There are standards that must be adhered to when one is serving the public (oh, and btw, the idea of disappearing web pages from the Jones Day website reflects, I suggest, their own ethical confusion as well). Here’s an important perspective from today’s Online Media Daily:

“Legal ethics expert Stephen Gillers, a professor at New York University Law School, maintains that there’s no question that Deborah Platt Majoras should recuse herself, regardless of whether Jones Day appeared before the FTC in the matter. John Majoras “stands to gain from the success of Jones Day, especially in a high-profile case like this and, therefore, her decision can affect his interest and therefore her interest,” Gillers said.”

“DoubleClick Law Firm Accused Of Concealing Involvement In Merger.” Wendy Davis. December 14, 2007

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The news media and behavioral targeting connection

It’s long been a concern that so many news organizations–or their parent entities–have embraced behavioral targeting (and so many other types of online marketing techniques) without clear disclosure to users, readers and viewers. There should be stories explaining what’s going on, exposing the techniques used that threaten privacy, analysis on the implications to journalism, editorials supporting reform, etc. We have covered some of these issues in our book and on this blog. But as a reminder, we run an excerpt from a Tacoda want ad for online sales manager: “TACODA®, Inc. (www.tacoda.com) is the world’s largest and most advanced behavioral targeting advertising network… Major US media partners include Dow Jones, The New York Times Company, NBC Universal, … [and] USAToday.com.”

All the news that fit to click, indeed.

Google & the Public Interest Policy Pod People

They’re coming. The “Google Policy Fellows” to help staff an array of public interest groups and policy think-tanks. “As lawmakers around the world become more engaged on Internet policy,” says Google, “a robust and intelligent public debate around these issues becomes increasingly important…The Google Policy Fellowship program offers undergraduate, graduate, and law students interested in Internet and technology policy the opportunity to spend the summer contributing to the public dialogue on these issues…Fellows will… work at public interest organizations at the forefront of debates on broadband and access policy, content regulation, copyright and trademark reform, consumer privacy, open government, and more. Participating organizations… include: American Library Association, Cato Institute, Center for Democracy and Technology, Competitive Enterprise Institute, Electronic Frontier Foundation, Internet Education Foundation, Media Access Project, New America Foundation, and Public Knowledge.”

It’s wrong for public interest and consumer organizations to take Google’s money and especially provide a “Fellowship” in its name. We need to build more consumer advocacy capacity to address Google’s growing power, especially its threat to privacy. No matter what these groups say (and some already take money from Google; others receive broad media industry support), there are digital strings attached, as subtle as they may be. The Fellowship program is just another lobbying and PR effort coming from a company that has a broad policy agenda. Many of the groups above should be training people to represent the public versus companies such as Google, and other big online advertisers and new media conglomerates. Giving Google a say on the training of policy advocates, let alone a funding role, undermines the public interest movement.

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Facebook’s chief revenue officer’s pitch to advertisers: We’ve created “the most sophisticated and accurate targeting system available on the web today.”

What companies such as Facebook and MySpace say to their marketing clients and prospects is one thing. To users and members (and regulators), especially about protecting privacy, it’s another story. That’s one reason why we hope everyone will review this video from Facebook’s chief revenue officer Owen Van Natta presentation at a U.K. marketing conference held November 7, 2007. Van Natta explained that the new Facebook marketing system was designed to help marketers reach “people that influence people…the next generation of advertising is going to tap into trusted referrals in a way that has never has been done before.” Using the language of marketers, Van Natta pointed to the 25 million individuals daily on Facebook: “that’s a lot of reach and frequency.” “We’re going to spread your message virally,” he told the Internet Advertising Bureau UK crowd. You can “fan” your brand, he assured them. Facebook would enable them to tap into the “power of the influencer.”

Van Natta also discussed the test they had done of the new Beacon and related Facebook marketing system. Calling Facebook’s advertising approach a form of `social distribution,’ he said that “this is going to create some of the most effective advertising that marketers have ever seen…Facebook social ads are like trusted referrals from your friends.” It’s “the most sophisticated and accurate targeting system available on the web today.” The chief revenue officer also trumpeted the “targeting and insights” capabilities of the new approach: “nothing like this has ever been available before…incredibly power insights…actionable information.”

Van Natta also discussed the benefits for advertisers from the Beacon system, including how the use of the marketed products by Facebook members was tied in to their “mini-feed.” He discussed the new service called “Pulse,” which informs advertisers how many people are talking about their brand on Facebook. That’s “incredibly valuable,” Van Natta noted. He said they knew exactly who was getting the ad, and that advertisers would receive “actionable social data.”

We hope all Facebook users and regulators–here and in the EU especially–will watch this video. Facebook users have no idea they are now part of a viral marketing scheme, where information that is being sent to them is shaped by the kinds of arrangements made with advertisers. The idea that the information shared with marketers is “non-personally identifiable,” as he claims, is absurd. They know your interests, where you live, your circle of friends, etc. There is an important place for commerce in communications. But there need to be rules to ensure that what goes on is fair. And privacy must be protected.

We hope that users of Facebook (as well as MySpace) express opposition to the new aggressive data collection and targeted marketing system. Facebook is supposed to be an community where you can express who you are, and friends freely communicate. But it’s being transformed into a zone where advertisers with the biggest budgets can harvest your data, take advantage of your network of friends, and deliver targeted marketing and branding commercials. Facebook’s new approach combines behavioral targeting with viral marketing. That system threatens everyone’s privacy. Facebook is thumbing its nose at its users as well. This forced data collection and `target to your profile and friend’s’ scheme is, claims Facebook’s “chief privacy officer” Chris Kelly, actually good for you. “We saw a real opportunity here to democratize advertising,” he said [via Online Media Daily. Sign-up required]. “People will not be able to opt out of these social ads or turn them off, at least for now, unless they stop revealing information about themselves on Facebook.” That’s according to Techcrunch, which blogged live from Facebook’s advertising event.

Is this a democratic form of expression, or a Kremlin like digital gulag?

Facebook’s users are viewed as merely grist for a big data mining mill designed to sell targeted ads. Here’s how Zuckerberg described the new approach to advertisers (also from the same Techcrunch story): “Let’s talk about targeting. With Facebook you will be able to select exactly the audience you want to reach, and we will only show your ads to them. We know exactly what gender someone is, what activities they are interested in. their location, country, city or town, interests, gender,” work history, political views…Advertisers can build their own Facebook pages and design them any way they like: “We have photos, videos, discussion boards, any Flash content you want to bring to your page, plus any application a third party developer has made.”

Zdnet reported that Facebook Ads will enable “businesses to connect with users and target advertising to the exact audiences they want…Facebook will provide metrics to its marketers that include activity, fan demographics and ad performance so businesses can adjust targeting and content.”

This is a real violation of trust. No one is saying Facebook can’t make money. But it needs to be be done in a way that respects the privacy and values of its members. The time to express displeasure is now.

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Google Becomes a member of the Nielsen "family." Threats to our Privacy as we watch TV

Few readers may recall when Norman Lear’s “Mary Hartman” realized that she and her fellow patients at a psychiatric facility watched a Nielsen ratings-connected TV set. Lear’s critique that the TV rating system that has determined success for the TV business is deeply flawed and–frankly, crazy– is still true. But Google (and Doubleclick’s) move to monitor and analyze our viewing on TV and other platforms is just as insane–if we want to protect our privacy. “Google has been reporting millions of second-by-second data points to its TV Ads clients,” explains MediaDaily News. “Ultimately, Google expects TV’s interactive capabilities to improve to the point that it is generating the same kind of immediacy and backchannel as the Internet.” [from an interview with Mike Steib, director of Google TV Ads].

We doubt cable and DBS subscribers recognize that they are now involuntary members of the Nielsen/Google data tracking combine. Here’s how Multichannel News reports on the deal: “By combining Nielsen demographic data with aggregated set-top box data, Google plans to provide advertisers and agencies with comprehensive information…We have millions of set-top boxes that belong to EchoStar from which EchoStar is pulling data and is providing it to us for the Google TV Ad system: It’s a lot of data points,” Steib said…Advertisers can better understand exactly how their ad is performing and make near real-time changes to their TV advertising campaigns to deliver better ads to viewers, according to Google.

“One of the things we haven’t been able to provide to our advertisers to date, when we report back the very next day the impressions that they’ve received from the set-top boxes, we have not yet reported demographics and audience composition,” he said. “We are now going to be able to make that information available to our advertisers”…Google and Nielsen claim that as a result of their new partnership, this is the first time that advertisers and agencies will have such a level of detailed measurement available in a single place and at such a large scale.”

We hope Congress and the FTC will step in to prevent the entire TV viewing population from becoming involuntary drafted into the Nielsen/Google data collection, profiling, and targeting system.

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Acxiom [Echo] Targets Your Data

Today’s Wall Street Journal story on Acxiom’s broadening use of online and offline data is an important story. As we noted to Journal reporters, Acxiom has been acquiring behavioral targeting firms to broaden its reach. Last month, Acxiom took over EchoTarget, a “re-targeting and behavioral network.” Acxiom, said Greg Smith (former EchoTarget CEO and now an Acxiom honcho), “recognized” that “clients are really taking BT [behavioral targeting] seriously.” Here Acxiom’s vision for its future, according to Rich Howe, chief marketing and strategy officer [my italics]:

“We can go to our clients that are looking to tie all their marketing programs in a single platform. The largest clients we deal with have these large marketing data warehouses that are already built, and large investments made, and they want to fully monetize that by including the digital capabilities. You are not going to do away with direct mail. It will continue to be a big part of the spend for big customers. We can complement all of the techniques you have had in that world with the other channels like email and search and Web site optimization, and of course trying to leverage display advertising as a means to build product or just sell products. It is multichannel play. That is the game we are playing.”

Yesterday, Acxiom officially unveiled, according to MediaPost, [my italics] “its Relevance-X products designed to allow marketers to make online media buys using an ad network targeting specific customer segments based on their predictive lifestyle and purchase intent profiles. “We’re really excited about this,” said Rich Howe, Acxiom’s chief marketing and strategy officer. “We’re bringing our knowledge and experience in direct marketing to the online channels to give clicks context–going far beyond basic information such as age, gender and household income to include the attitudes, beliefs and lifestyles of consumers that are much more predictive.”

Acxiom also acquired last Spring a company called Kefta, which it called “the leader in real-time, dynamic personalization solutions for the Internet.” Here’s a another quote from the Acxiom release on the deal [our italics]: “Kefta’s dynamic targeting solution delivers timely, relevant content to website visitors based on their unique online behavior and individual characteristics, thereby helping marketers boost response, revenues and customer loyalty. By recognizing and responding to the different needs of customers online, Kefta helps marketers deliver relevant and personalized marketing messages in real time on websites, search engines, banners and e-mails.”

In a 2007 “white paper” titled “Creating High-Precision Marketing Intelligence with Consumer-Centric Analytics,” Acxiom explains that its “integrated consumer information management” approach includes access to [my italics] “Real-time data — Real-time interactions with consumers (reflected in “hand-raising signals” such as in-bound calls, requests for information, responses to e-mail campaigns and on-line search/research click-stream data) that is captured from across an enterprise and analyzed further deepens the ability to understand specific consumers and to predict future behavior. Acxiom ConnectionPoint-XTM provides this real-time capability to fuse these behavioral signals about consumers’ interests or demand with a consumer information database.

Meanwhile, the Journal story says that Acxiom “briefed the FTC on its targeting plans and the regulators didn’t raise significant objections.” The FTC spokesperson cited in the story suggested that wasn’t true. We need to know what exactly was presented to the FTC by Acxiom and what, if anything, was said by the FTC. But it does illustrate one of our core concerns. The FTC has to face the facts about the new realities and threats to our privacy from data collection and interactive marketing. The FTC has to act now and protect consumers.

PS: Just a FYI for EU privacy officials & advocates. Your data is being analyzed by Acxiom as well. Here’s a press release excerpt: “Axiom(R) Corporation today announced the introduction of an enhanced consumer segmentation solution that will allow marketers to grow their business through a better understanding of their consumers within a country coupled with the ability to compare those consumers across countries. The new solution, Personicx(R) International, results from the combination of Acxiom’s customer data management expertise and the extensive data assets attained when Acxiom acquired Claritas Europe and Consodata last year. Bruce Carroll, Acxiom’s Strategic Development Leader explained the difference Personicx International will bring to marketers: “Traditionally, marketers rely on country-specific demographics and geodemographic systems such as Acxiom’s Personicx product. These solutions are optimised to perform within a given country and as a result do not allow for effective comparison of consumers between countries. Personicx International changes that… The new system is being made available internationally starting with the U.K., Germany, France, Spain, the U.S., Poland, the Netherlands, and Portugal and underlines Acxiom’s intentions following the acquisitions it has made over the last 18 months. “Creating Personicx International would not have been possible without access to the large data assets we now have,” Kevin Zaffaroni, Acxiom’s Leader for Europe, Asia and Australia, said. “We’re taking existing information but using new approaches to help marketers do things and achieve results that just weren’t possible before.”

Google Hides Behind Online Content to Protect its Data-Gathering/Targeted Marketing Business

Google’s D.C. public policy lobbyists need to do better than echo the same phrases that advertisers have used for decades. Whenever questions are raised about unethical and consumer harmful business practices, advertising companies–now including Google it appears–trot out the same old canard. Google’s policy people say that we should all be thankful that online advertising has given the public “consumer benefits in the form of more online resources and more relevant information…Simply put, advertising is information, and relevant advertising is information that is useful to consumers.” We are happy to debate the issue about the role online advertising plays in the future of diverse content, especially news. We have real concerns about the gatekeeping role Google and a few others will play as the online content market rapidly evolves. But Google has not answered the basic question, months after its announced takeover of Doubleclick. What privacy advocates are saying is that the way Google conducts its interactive marketing business (especially in the light of the proposed takeover) is a privacy concern–not online advertising itself.

Google CEO Eric Schmidt (see his new Financial Times op-ed) wrote that although Google is concerned about privacy, the solution does not “…automatically mean new laws. In my experience self-regulation often works better than legislation – especially in highly competitive markets where people can easily switch providers.” But, of course, with Google’s dramatic expansion, along with the rush to consolidate (Microsoft, Yahoo! and Time Warner, among others), it’s questionable whether we will have competition. Besides, we require national laws, not self-serving declarations from CEO’s whose business model depends on the collection and expanded use of personal information.

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Canadian Privacy Group Raises Key Concerns on Google, Doubleclick and Threat to our Privacy

We urge everyone to read the CIPPIC petition filed yesterday in Canada asking for a investigation of Google and Doubleclick. Among the key questions raised is whether the two companies are violating Canadian privacy law (Personal Information Protection and Electronic Documents Act-PIPEDA). The full document is on the Canadian Internet Policy and Public Interest Clinic website. But here are some key excerpts raising very important issues. Bravo! (and Merci) CIPPIC.

“37. Google’s servers automatically record information when the user visits Google’s website or uses Google products. Google server logs record the search request, URL, Internet Protocol (IP) address, browser type and language, and the date and time of the request, and one or more cookies that may uniquely identify the user’s browser. Google stores server logs indefinitely, but “anonymizes” them after 18 months.

38. The act of collecting user search queries and IP addresses invokes PIPEDA, requiring Google to provide adequate notice to users of any collection, retention, use, or disclosure of personal information other than that which can be reasonably implied (in this case, collection, retention and use necessary to deliver search results to the individual user). Without such notice, Google cannot be said to be obtaining meaningful consent from users to any other information practices, including retention and use for targeted marketing purposes.

39. The fact that Google’s search service is entirely dependent upon targeted marketing to users is not evident to the ordinary computer user. It cannot therefore be said that users implicitly consent to the use of their data for marketing purposes, even if such use is central to Google’s business model. Indeed, most users likely do not reasonably expect Google to retain their search queries in connection to their IP address for much longer than necessary to deliver the requested search results.

62. Google collects a variety of personal information about its users and uses that information to, among other things, improve its target marketing services. Online advertising services are constantly being improved, sometimes in ways that involve greater collection and use of personal data. This raises the question of what level of data collection and analysis is necessary for the purpose of target marketing; at what point is Google collecting more personal data than necessary for advertising purposes? No doubt Google is limiting its collection of data to that which is relevant for the marketing purposes, but the test in Canada is necessity, not relevance.

63. CIPPIC submits that a determination of what is necessary under Principle 4.4 should be driven not by what is possible or desirable from an advertising perspective, but rather what is actually necessary for Google to provide the service. The same test should be applied to all online advertisers, not just Google.”

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Google and Yahoo! Among Largest Donors of Ad Council

In a full-page ad in today’s New York Times “Week in Review” section, the Ad Council lists its `who’s who’ of media and big brand donors. Atop its list is the “President’s Circle,” those select few who donated $150k and up. Google and Yahoo! joined Johnson & Johnson, PepsiCo, Time Warner and the board and staff of the Ad Council itself in that select donor category. In comparison, CBS, Coca-Cola and Microsoft was listed below in the Council’s “Leadership Circle,” donating anywhere from $100K-149K [“Bronze Class” donors, the lowest category of those giving between $1K and $4,999 included media companies Bonneville International, Media General, and the Hallmark Channel].

Google also serves on the Ad Council’s board of directors, working alongside many of the global heavyweights in marketing and media, including Publicis, McDonald’s, DDB Worldwide, and the New York Times. Despite its rhetoric as an organization dedicated to public service, the Ad Council is really part of the marketing industries political support system. While there are many in the ad business who sincerely do care about the public interest, the Council isn’t ultimately about supporting real change. Certainly nothing which would seriously challenge the role marketing and advertising plays in contributing to inequities in our global culture.

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