Helmink, Jim

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Helmink, Jim

  1. 1. Government Regulation Will Set Users Free James Helmink Executive Summary The United States should create stricter baseline governmental regulations of the internet advertising industry because government regulations are necessary to protect consumers’ privacy. Governmental regulation may have some short-term monetary consequences for the internet advertising industry, but there is a potential for industry devastation if personal data continues to be collected and stored in its current way, because of how easily that data can be used inappropriately. In order to avoid the increasingly severe consequences of these inappropriate uses, the government should set some baseline regulations for Do-Not-Track technology and create substantial fines similar to those enforced on telemarketers. Do-Not-Call succeeded and so will Do-Not-Track Technology One area where governmental regulation was very successful was with the Do-Not-Call Registry. Tens of millions signed up in the first month, and this success was partially due to the FTC making it easy to enroll.1 Telemarketers were very afraid of being completely put out of business, but the effects were not as grim as they anticipated.2 Instead of shutting down, telemarketing firms adapted by taking advantage of exceptions for existing customer relationships and switching to inbound customer service or proactive customer care services.3 This year, Canada has decided to start their own registry, because Canada recognized the success 1 Chris Jay Hoofnagle, Electronic Privacy Information Center, “Privacy Self Regulation: A Decade of Disappointment”, at 2 (Mar. 4, 2005), available at http://epic.org/reports/decadedisappoint.pdf. 2 LA Times, “Telemarketing Firms Surviving Do Not Call” (Oct. 18, 2004), available at http://articles.latimes.com/2004/oct/18/business/fi-telemarketers18. 3 Connie R. Bateman, JoAnn Schmidt, Academy of Marketing Studies Journal, “Do not call lists: a cause for telemarketing extinction or evolution?”, at 19 (Jan. 2007), available at http://findarticles.com/p/articles/mi_hb6167/is_1_11/ai_n29388931/pg_19?tag=artBody;col1. 1
  2. 2. for protecting consumers and the ability of telemarketers to adapt.4 Some have even recognized that the list might make telemarketing more efficient because those who are least likely to purchase something from a telemarketer are eliminated from the list.5 The success of the Do-Not-Call Registry mirrors what could be possible for the protection of personal data in the internet advertising industry if the government were to get more involved. However, due to the nature of the Internet, a registry would probably not be best solution. Instead, the government could regulate that the developers of web browsers create a protocol for a universal Do-Not-Track “supercookie” that would stay with the browser. This would stop the current problems that exist when those who do not want to be tracked delete their cookies and end up deleting their do no track cookies too. In addition, this sort of regulation could have benefits similar to the Do-Not-Call Registry. For example, more importance might be placed on existing customer relationships, and internet advertisers could focus their spending on those users most interested in tailored advertising. Having a uniform governmental standard, with significant fines attached for violations, would be the best way to make sure that websites enforce the new standard. By changing the economics of collecting personal data, companies will be encouraged to only save the data most valuable to them and have greater incentives to protect that data. This would function like the fines up to $11,000 per call that the Do-Not-Call registry can levy. 6 A universal “supercookie” would be an efficient tool to enforce these new standards, because the government could just spider websites like a search engine and find any American based sites that were not complying 4 Steve Faguy, The Gazette, “Canada’s Do Not Call registry” (Dec. 29, 2007), available at http://www.canada.com/montrealgazette/news/saturdayextra/story.html?id=97fd0a18-f2c5-41fa-87a4- 1c759a13fd34. 5 Connie R. Bateman, JoAnn Schmidt, Academy of Marketing Studies Journal, “Do not call lists: a cause for telemarketing extinction or evolution?”, at 17 (Jan. 2007), available at http://findarticles.com/p/articles/mi_hb6167/is_1_11/ai_n29388931/pg_17?tag=artBody;col1. 6 Federal Trade Commission, “Q&A for Telemarketers and Sellers About the Do Not Call Provisions of the FTC’s Telemarketing Sales Rule” (May 2006), available at http://www.ftc.gov/bcp/edu/pubs/business/alerts/alt129.shtm. 2
  3. 3. with the rules of the “supercookie.” The government could then swiftly fine sites before a data breach occurred that would cost a company significantly more in fines to cover the costs of identities that are stolen, jobs that are lost, or any other adverse effects that are due to that breach. Moreover, if the government created one baseline privacy standard, it would make the actual protections provided much more transparent to users. At the present time, the notice that is provided on websites is wholly ineffective because typical internet users do not read privacy policies and they are different on every site. The zombie like approval of these notices is dangerous for citizens and is the reason for the need for these regulations. The National Advertisers Initiative has tried to create some standards, but has been ineffective due to the lack of effective enforcement mechanisms. If all interactions with websites started with the same uniform baseline set of rules, people could adjust their reliance on the Internet to their own risk tolerance of what they feel comfortable sharing. It would also make it much easier for those websites that did not comply with the standards to be easily indentified by the browser in order to warn users in a way that would be far more useful than the obscure privacy notices used today. This would not preclude website administrators from offering more protections for competitive advantage. They could very easily explain extra privacy protections that they would provide on their own websites without the need for extra consent. For instance, if sites wanted to store data for less than the recommended period or not at all, they would have the option to do so and tell the public that they were doing that. However, if a website administrator wanted to do more with the data, it would have to be clearly explained in bold print, with language that made it easy to understand, and users would have to opt-in. This would help to make consumers more suspicious about these sites that wanted 3
  4. 4. to do more with personal data than the baseline standards allowed, and make users more careful in their interactions with those sites. This sort of system would still allow those who want the special advantages that come with being tracked to take advantage of them, but it would also protect the default user of the Internet who does not understand the ramifications of their actions. The fear that this sort of opt-in system would severely hurt internet commerce and the amount of free services available online is overstated. An example of where this is not true is shown with a study conducted on grocery stores with and without frequent shopper cards. The study concluded that in every comparison, less money was spent at the store without the card and in one case the amount was 29% less.7 If some retailers with real storefronts can offer lower prices without tracking customers, there might not actually be a significant loss of money for advertisers or loss of utility for consumers if the protections around tracking are made stronger. Even under a system with more privacy, retailers will still have substantial access to searches that users are completing at that instant and small businesses can still participate in that market. Moreover, if the users still want to be tracked, they can still opt-in like they do for the dubious shopping card programs. No matter what, the baseline should focus on privacy, not profits. Advertisers are also incorrect that the government should not intervene because the regulations will be constantly behind the newest technology. Similar to how the industry adapted in telemarketing, it will surely do the same on the Internet. However, the internet browser has been the standard for over a decade, so to not create effective baseline regulations protecting privacy on what is used everyday, on almost every computer, is an irresponsible mistake. Europe’s data protection experts, as part of the Article 29 Working Party, are being aggressive with their regulations for protecting privacy on the internet, because in the European Union 7 Chris Jay Hoofnagle, Electronic Privacy Information Center, “Privacy Self Regulation: A Decade of Disappointment”, at 13 (Mar. 4, 2005), available at http://epic.org/reports/decadedisappoint.pdf. 4
  5. 5. privacy is considered a fundamental right.8 If the U.S. government created standards like a “supercookie” that could allow for greater privacy on the Internet, it might be able to gain support of the Article 29 Working Party and make that new technology the standard for Europe as well, which could give American firms a technological head start and advantage. By setting the framework sooner rather than later, internet developers can move forward with certainty that the new standards will be the wave of the future and advertisers can design their algorithms with certainty. Developing these regulations while the industry is still comparatively small will be easier and less expensive than trying to shift standards later. The market may be the appropriate place to determine that Blu-Ray is better than HD-DVD, but it is not the appropriate place to determine what level of security someone’s personal profile with information like their sexual orientation or medical history should receive because that information could cause someone to lose their job or affect their ability to get health insurance. Conclusion In conclusion, governmental regulation of the internet advertising industry can be effective in a way similar to the Do-Not-Call Registry that did not cause the end of commerce. The new rules just changed the way that advertisers reached customers, and might have even had positive side benefits of retailers paying more attention to their existing customers. There may be some negative side effects for smaller advertisers and retailers, but the Internet has a remarkable ability to adapt and will find a way to continue to offer them access to the market. The European Union and the Article 29 Working Party are working towards setting baseline regulations and if the United States settles with self-regulation it risks being behind the technology curve in yet another industry and could further jeopardize the American economy. 8 Article 29 Working Party, Recommendation 3/97: Anonymity on the Internet, at 4 (December 3, 1997), available at http://ec.europa.eu/justice_home/fsj/privacy/docs/wpdocs/1997/wp6_en.pdf. 5

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