Behavioral Ad Policy Moving to Timely Notices from Long Policies, Opt-In vs. Opt-Out
SAN FRANCISCO -- It’s more important that Internet users get useful information, in timely, digestible ways, that they can act on about behavioral advertising than for policymakers to choose between an opt-in or opt-out regulatory system, agreed an FTC lawyer, a privacy advocate and an executive of a location-based services company. The current policy thrust is all toward “simplified, meaningful notice,” FTC lawyer Laura Berger said late Tuesday at the FCBA Seminar West. A privacy report coming from the FTC will stress getting notices to users as they engage in related activities.
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Instead of relying on bloated privacy policies for making disclosures, companies should make information “really clear, really obvious” in smaller chunks, at the points where it’s most pertinent to users, such as registration and privacy settings, said Brian Knapp, general counsel and chief operating officer of Loopt, which provides location-based services. The FTC is “very sophisticated” in its approach, “interacting with industry,” he said.
Opt-in isn’t “a silver bullet,” and online customers are easily lost when disclosure obstacles are placed in their way, Knapp said. Research shows that opt-out can prompt companies to cover themselves by shoving as many contingencies as possible into their privacy policies, said Kevin Bankston, an Electronic Frontier Foundation lawyer.
The very future of the Internet as a vast source of content and services without direct charge to users “may be at stake” in government policy regarding behavioral advertising, Knapp warned. “All the innovation is driven by relevant advertising. … About 400 million people are going to be upset if they have to start paying for Facebook by the day."
It’s “really important to us” that location information is “not classified as sensitive information” like Social Security numbers and medical data under government rules, “with all the restrictions that go with it,” Knapp said. Location-based services would be killed by treating them as customer proprietary network information so the account holder would have to approve each download of a mobile application or by requiring a user to go to a website to register consent to a download, he said.
Writing congressional legislation on behavioral ads “is going to be very difficult,” as reflected in disappointment from both business and privacy advocates with previous efforts, Bankston said. He said he would first attack the use of information already accumulated, but Berger said “maybe the first focus should be data collection.” Federal legislation tends to get either “watered down” or “too specific,” Knapp said. The FTC has “one of the better approaches” in government toward encouraging self-regulation, he said.
People don’t treat where they are as sensitive information most of the time, Knapp said. But sometimes they don’t want that known, for instance perhaps if they go to a “Communist Party office” or to EFF, he said. Then it’s important that they be able to turn off location monitoring or switch to “an E-911 only mode” for being located, Knapp said.
But disclosure of “a single location can be disastrous,” Bankston objected. He pointed to visits to family-planning clinics and Alcoholics Anonymous meetings, as well as political and religious gatherings that might be unpopular. And a log of a person’s locations “can be identifiable if it’s kept long enough,” Bankston said.
"It’s complicated,” Knapp acknowledged. He added, “This is sensitive information. Bad things can happen.”
There’s “a lot of promiscuity” in who gets location information and what they do with it, Bankston said. “We don’t really know” in many cases, he said, but “Loopt has very clear policies about how they handle your location information.”
"We need telecom executives in front of Congress, under oath,” explaining what subscriber information they share with whom, Bankston said. “We just don’t know” how this “gray market” works, he said, but he hears “all kinds of scary stories."
"My organization is not anti-advertising or anti-behavioral advertising,” Bankston said. EFF, like the FTC, is just concerned that consumers know what’s going on and are given choices about how they're treated, he said. Berger said the commission “is always a fan of self-regulation, where it can work.” She pointed to Power-I -- now called the Advertising Option Icon of the Digital Advertising Alliance -- as an example of private systems for icons with ads for surfers to click on for information about data collection, sharing and use and to register opt-outs.
It’s not clear which providers of location-based services come under the Electronic Communications Privacy Act, Bankston said. He said he thinks Loopt does, and Knapp nodded. The company wants to “cooperate with law enforcement” without disappointing customers by “rolling over” for information requests by authorities, Knapp said. The privacy policy explains that in many cases Loopt won’t turn over customer data without a warrant, except in “exigent circumstances,” he said.