Behavioral Ad Bill Unlikely to Get Through Congress, FCC Aide Says
Congress has no pressing reason to approve a bill regulating behavioral targeting this year, government and industry lawyers told a Practising Law Institute audience Thursday. One of the biggest impediments to a bill going through is the plight of media companies and their reputations with readers, said Sherrese Smith, aide to FCC Chairman Julius Genachowski and former general counsel for Washington Post Digital; and Google Senior Product Counsel Mike Yang.
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A recent study of consumer attitudes toward behavioral targeting shows the practice is “striking a chord” with Americans, said Joel Reidenberg, director of the Center on Law and Information Policy at Fordham University School of Law. The survey by the Berkeley Center for Law & Technology and the Annenberg School for Communication at the University of Pennsylvania found two-thirds of adults don’t want targeted ads, and a slight majority of those 18-24 feel the same. Two-thirds also said companies and possibly their executives should go bankrupt or be imprisoned for the practice, Reidenberg said: “There’s a really deep antagonism” toward targeting of any kind. Legislation to regulate deep-packet inspection, a related issue, most likely won’t happen “any time soon,” though. It’s more likely Congress would apply a legal regime similar to the Gramm- Leach-Bliley rules for financial privacy disclosure, he said.
“I'm a little more skeptical on whether we could get something passed,” because it’s doubtful the Judiciary and Commerce committees in each chamber, which would all have jurisdiction, could agree on the provisions in a bill, Smith said. The proliferation of states last year drafting their own privacy laws had given “urgency” to the push for a federal law that would set national standards as well, but that factor is now missing, she said. The economic downturn may also halt interest in preventing forms of advertising that newspaper executives consider crucial to their business going forward, Smith said. The Federal Trade Commission (FTC) has spooked the media and advertising industries into devising better self-regulatory schemes as well, since FTC Chairman Jon Leibowitz has repeatedly emphasized “this is the last chance” before the commission drafts its own rules, she said. “My sense, at least this year,” is self-regulation will be broadly accepted before the FTC could devise rules.
The push for targeting rules “appears to have a lot of momentum” until one considers that any new law would hit respected media organizations such as The Washington Post, The Wall Street Journal and The New York Times, who all use some form of targeting, Google’s Yang said. People tend to associate targeting with “companies they don’t know,” who silently collect browsing information and sell it.
Users’ negative views usually come from a “gut reaction” to the knowledge that their activities are being tracked, Smith said. But when they learn how targeting works and the function it serves, namely subsidizing content, users generally accept it, she said.
Reidenberg said Smith and Yang were contradicting the results from the Annenberg study, the “first really proper social science study” that asked “non-loaded questions” to participants. “It isn’t just the invisible data gatherers” that work on behalf of Web publishers that bother people: “It is the very basic concept that they're being tracked.”