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Digital Due Process: Protecting Americans’ Privacy by Restoring Constitutional Limits to Government in ECPA

by Ryan Radia on March 30, 2010 · 20 comments

By Ryan Radia & Berin Szoka

Today a broad array of civil liberties groups, think tanks, and technology companies launched the Digital Due Process coalition. The coalition’s mission is to educate lawmakers and the public about the need to update U.S. privacy laws to better safeguard individual information online and ensure that federal privacy statutes accurately reflect the realities of the digital age.

Over 20 organizations belong to the Digital Due Process coalition, including such odd bedfellows as AT&T, Google, Microsoft, the Center for Democracy & Technology, the American Civil Liberties Union, the Electronic Frontier Foundation, The Progress & Freedom Foundation (where Berin works), the Competitive Enterprise Institute (where Ryan works), the Internet Technology & Innovation Foundation, Citizens Against Government Waste, and Americans for Tax Reform. The full member list is available at the coalition’s website.

Amidst the heated tech policy wars, it’s not every day that such a diverse group of organizations comes together to endorse a unified set of core principles for legislative reform. Over two years in the making, the Digital Due Process coalition, spearheaded by the Center for Democracy & Technology, is a testament to the broad consensus that’s emerged among business leaders, activists, and scholars regarding the inadequacies of the current legal regime intended to protect Americans’ privacy from government snooping and the need for Congress to revisit decades-old privacy statutes. It also represents a revival of a bipartisan consensus on the need for reform reached back in 2000, when the Republican-led House Judiciary Committee voted 20-1 to approve very similar reforms (HR 5018).

Today, in the digital age, robust privacy laws are more important than ever. That’s because U.S. courts have been unwilling to extend the Fourth Amendment’s protection against unreasonable search and seizure to individual information stored with third parties such as cloud computing providers. Thus, while government authorities must get a search warrant based on probable cause before they can lawfully rifle through documents stored in your desk, basement, or safe deposit box, information you store on the cloud enjoys no Constitutional protection. (Some legal scholars argue this interpretation of the Fourth Amendment, referred to as the Third Party Doctrine, is outdated and deficient. See, for example, Jim Harper’s excellent 2008 article in the American University Law Review.)

Continue reading →

20 comments

OSTWG, Child Protection, Privacy & Data Retention Mandates v. “Behavioral” Advertising

by Berin Szoka on February 4, 2010 · 5 comments

Today’s Online Safety Technical Working Group (OSTWG) meeting included some heated debate about whether online intermediaries should be doing more to assist law enforcement to help track down child predators and those producing and distributing child pornography. (It’s not clear whether or when NTIA will actually put the archived video or a transcript online at this point).

Most interesting was the third panel of the day (agenda), which devolved into a shouting match as Dr. Frank Kardasz (resume) of the Arizona Internet Crimes Against Children (ICAC) Task Force basically accused Internet intermediaries of being willing accomplices in crimes of sexual abuse against children—and suggested that they could be charged as co-defendants in child porn prosecutions. A few industry folks in the room expressed their outrage at such slander. A retired law enforcement officer perhaps put it best when he said that he had never dealt with an ISP that didn’t sincerely want to help law enforcement stop this monstrous crime.

Apart from those pyrotechnics, and a superb morning presentation by the Pew Internet Project’s Amanda Lenhart about “Social Media & Young Adults,” the most interesting part of the day concerned data retention mandates. Even as a debate rages in Washington about how much collection and use of online data should be permitted, Dr. Kardasz suggested online service providers should be required to hold user data for 5 years. A number of attendees noted the staggering costs of such a mandate given the sheer volume of information shared every day by use, especially for startups for whom building monitoring and compliance infrastructure can be a significant barrier to entry. Of course, practical objections are always answered with practical counter-solutions—in this case, several attendees asked why we couldn’t just provide tax incentives or stimulus money to defray such costs. One attendee joked that we’d have to devote the entire state of Montana just to house all the necessary server farms.

But the strongest objection came from John Morris of the Center for Democracy & Technology, who rightly noted that no amount of government subsidies for data retention could prevent leakage of sensitive private data. For this reason and because of the basic civil liberties at stake whenever the government has access to large pools of data about its citizens, Morris argued that we need to strike a balance between how we protect children & the values of free society. Dave McClure of the US Internet Industry Association (USIIA) seconded this point powerfully: If such vast data is retained, it will be abused.

Then the riposte from advocates of data retention mandates: Aren’t online intermediaries already retaining huge amounts of consumer information? If they can do that, why can’t they retain the data we need to track down child predators and child porn distributors? Continue reading →

5 comments

Lawsuits and Enforcement, not Legislation: Balancing Social Media and Consumer Protection

by Braden Cox on December 1, 2009 · 7 comments

What are the consumer protection issues of online social media sites and what’s the right regulatory balance? That was the focus of today’s Northern Virginia Technology Council (NVTC) event called “Social Media and Consumer Protection: Finding a Balance.” The breakfast event featured Tim Sparapani of Facebook, Pablo Chavez of Google, and Ari Schwartz of the Center for Democracy and Technology (CDT).

But the event wasn’t about consumer protection (in the traditional sense), it was about privacy. Privacy online is today’s issue du jour, whether it is marketing to children or collecting and sharing data for targeted ads. The FTC has devoted a series of roundtable discussions toward privacy, with the first one beginning Dec. 7.

Privacy’s getting so hyped-up that I believe it to be the next “online safety” sort of issue where isolated and particularized incidents become sensationalized in the media and among regulators, creating counterproductive techno-panics that other commentators have described. This shift is apparent as many policymakers and advocacy groups become increasingly hostile toward targeted online advertising.

But are social media and privacy at odds such that there needs to be a “balance”–whatever that entails? While this question was never explicitly asked, it is clear that Ari Schwartz would say yes because he asserts that consumers don’t know what information is being collected and that users need help to gain control over their own data. Continue reading →

7 comments

Privacy Trade-Offs: PFF Comments on December 7 FTC Privacy Workshop

by Berin Szoka on November 11, 2009 · 26 comments

Adam Thierer and I will be participating in two separate panels at the FTC’s December 7 “Exploring Privacy” workshop discussing, respectively, surveys & expectations and online behavioral advertising. Below is the cover letter I filed as part of my comments (PDF & Scribd), along with four past PFF publications and a working paper on the benefits of online advertising.

Privacy Trade-Offs: How Further Regulation Could Diminish Consumer Choice, Raise Prices, Quash Digital Innovation & Curtail Free Speech

In general, we at PFF have argued that any discussion about regulating the collection, sharing, and use of consumer information online must begin by recognizing the following:

Privacy is “the subjective condition that people experience when they have power to control information about themselves and when they exercise that power consistent with their interests and values.” ^[1]
As such, privacy is not a monolith but varies from user to user, from application to application and situation to situation.
There is no free lunch: We cannot escape the trade-off between locking down information and the many benefits for consumers of the free flow of information.
In particular, tailored advertising offers significant benefits to users, including potentially enormous increases in funding for the publishers of ad-supported content and services, improved information about products in general, and lower prices and increased innovation throughout the economy.
Tailored advertising increases the effectiveness of speech of all kinds, whether the advertiser is “selling” products, services, ideas, political candidates or communities.

With these considerations in mind, policymakers must ask four critical questions:

What exactly is the “harm” or market failure that requires government intervention?
Are there “less restrictive” alternatives to regulation?
Will regulation’s costs outweigh its supposed benefits?
What is the appropriate legal standard for deciding whether further government intervention is required? Continue reading →

26 comments

Internet Advertising Picking-up — Just Won’t be Display Ads

by Braden Cox on October 22, 2009 · 7 comments

Two recent trends evidence the importance of targeted Internet advertising–more money going toward Internet ads, and fewer people that click on display banner ads.

First, the good news is that Internet advertising is rebounding (or at least seeing a reversal in the the decline of ad $). Tough economic times has decreased ad dollars among all marketing mediums. But online ads will be the first to see new demand from marketers. And some online companies are weathering the bad economy just fine. Google’s ad revenue rose 7 percent in the third quarter.

Compare with McClatchy (the U.S.’s 3rd largest newspaper company), where according to the AP article print advertising plunged 32 percent in the third quarter, but its online ad sales increased 3 percent.

So ad dollars are increasing. Where will money be spent? On targeted ads.

comScore released a study earlier this month that showed most people don’t click on display advertisements. As someone who never does either, I don’t find this surprising. According to comScore:

“The act of clicking on a display ad is experiencing rapid attrition in the current digital marketplace,” said Linda Anderson, comScore VP of marketing solutions and author of the study. “Today, marketers who attempt to optimize their advertising campaigns solely around the click are assigning no value to the 84 percent of Internet users who don’t click on an ad.”

This is huge. Online companies rely on advertisements to pay the bills and will need to better target ads to their users if they want to stay in business.

If we want to see the next generation of online content and services, then we need to stay vigilant to convince members of Congress (Boucher) and the FTC not to impose more restrictions on interest-based advertising, such as opt-in requirements.

7 comments

Privacy Polls v. Real-World Trade-Offs

by Berin Szoka on October 8, 2009 · 18 comments

Progress Snapshot 5.10 from The Progress & Freedom Foundation

A recent telephone poll conducted by professors at Berkeley and the University of Pennsylvania concluded, “Contrary to what many marketers claim, most adult Americans (66%) do not want marketers to tailor advertisements to their interest.” The study’s authors claim that their poll is the “the first nationally representative telephone (wireline and cell phone) survey to explore Americans’ opinions about behavioral targeting by marketers.” They also assert that the poll indicates that “if Americans could vote on behavioral targeting today, they would shut it down.” Advocates of regulating online data collection have trumpeted this poll as evidence consumers demand legislation to protect their privacy. “This research gives the F.T.C. and Congress a political green light to go ahead and enact effective, but reasonable, rules and policies,” declared Jeff Chester, a leading critic of online advertising.

But what is most surprising about this poll is not that 66% of users said they do not want tailored online ads, but that 34% of users said they did! The key, initial question of “whether or not you want the websites you visit to show you ads that are tailored to your interests,” presents no trade-off. The fact that anyusers said “yes” indicates that many users paused to do the rough mental math about the unarticulated trade-off between the benefits of receiving tailored ads and the costs of that tailoring.

The methodology of opinion polls necessarily affects respondents’ mental calculations, rendering polls not just easily manipulated, but inherently unreliable as indicators of real preferences. Every poll reflects the bias of its authors to some degree by the way questions are worded, the order in which they are asked, the sample surveyed, etc. The easiest way to bias the results of a poll is to omit any mention of the trade-offs at issue. This poll simply buried the issue of trade-offs in a heavily loaded follow-up question: After telling respondents that marketers “often use technologies to follow the websites you visit and the content you look at in order to better customize ads,” the interviewer asked whether the respondent would allow advertisers to “follow [them] online in an anonymous way in exchange for free content.” Only 10% of users said they would allow this voluntary exchange.

What does this tell us about whether, and how, government should further regulate online advertising? Precious little: Not only does this poll overstate the costs of targeted advertising, understate its benefits, and ignore the tools available to users to address their privacy concerns but, like any opinion poll, this one tells us more about the psychology of decision-making under the artificial uncertainty of polls than about the choices users would actually make in the real world. Continue reading →

18 comments

Cutting the Video Cord: US Open Streamed Online for “Free”

by Berin Szoka on September 1, 2009 · 6 comments

The Tennis Channel and ESPN have teamed up to offer live coverage of the US Open online. Not only is this a wonderful thing for consumers, but it also demonstrates just how easily content creators (including traditional television programming networks) can completely bypass cable companies, who once supposedly used their “bottleneck” power to act as “gatekeepers” over the content Americans could receive. If this was ever true, it certainly isn’t true in the era of Internet video!

The venture will, of course, be ad-supported. But just how much content such a model can support will depend heavily on whether Internet video programming distributors like this venture (or Hulu.com) will be able to personalize the ads shown on their videos based on the likely interests of users. Ad industry observer David Hallerman has predicted that spending on behavioral advertising:

is projected to reach $1.1 billion in 2009 and $4.4 billion in 2012 [a quarter of U.S. display advertising].The prime mover behind this rapid increase will be the mainstream adoption of online video advertising, which will increasingly require targeting to make it cost-effective.

The problem isn’t just the expense involved in streaming online video, it’s that contextually targeting advertising (based on keywords) is easy when the content is text but far more difficult when the content is video.

So if you’re hoping to cut the cord to cable and save the expense of a monthly cable subscription, you’d better hope the privacy zealots don’t wipe out advertising model necessary to make Internet video a true substitute for traditional subscription video sources!

6 comments

Privacy Elitists Launch All-Out Attack on Personalized Advertising Online

by Berin Szoka on September 1, 2009 · 19 comments

A coalition of ten self-described “consumer and privacy advocacy organizations” today demanded legislation that would restrict the collection and use of data online for customizing advertising based on Internet users’ interests. I’ll have more to say on this but here are my initial comments:

These so-called “consumer advocates” are actually anti-consumer elitists. Not only do they presume that consumers are too stupid or lazy to make their own decisions about privacy, but they ignore the benefits to consumers: more relevant advertising plus more and better content. Advertising has been the “mother’s milk” of media in America since colonial times and the future of media depends on the ability of publishers to replicate that revenue model online. Micropayments, donations, subscriptions alone simply can’t fund a vibrant marketplace of ideas. Only personalized advertising can sustain publishers through the Digital Revolution. Regulatory advocates haven’t demonstrated any harm to consumers that would justify such sweeping preemptive regulation. By strangling funding for new media, such regulations would amount to an “Industrial Policy” for the Internet. Instead, policymakers should focus on educating consumers and empowering them by promoting development of better privacy management tools.

19 comments

New Self-Regulatory Principles for Online Behavioral Advertising

by Berin Szoka on July 2, 2009 · 5 comments

The leading trade associations in the online advertising industry have just released their new self-regulatory principles—the first comprehensive self-regulatory principles industry has produced, which track closely with the suggested guidelines released by the FTC in February.

I commend the industry for setting a new standard in transparency, consumer control and data security. These Principles do much to empower Americans to make their own decisions about privacy, but I fear that many critics of so-called “targeted advertising” will never be satisfied, no matter how high industry raises the bar.

These critics have insisted that ordinary users can’t be trusted to make the “right decisions” about privacy and have insisted on imposing restrictive default “opt-in” rules for the online data collection that makes online advertising valuable to websites that rely on ad revenue. Such pre-emptive privacy regulation would stunt the growth of revenue for the “Free” online content and services we’ve all come to take for granted. During a time of economic recession, and as traditional media like newspapers struggle to make the transition from print to the Internet, it’s more important than ever that policymakers allow self-regulation to evolve. Only by doing so can we expect continued innovation and creativity online. We must all remember: There is no free lunch!

I’ll lead a panel discussion on July 10 on Capitol Hill about “Regulating Online Advertising: What Will it Mean for Consumers, Culture & Journalism?” Please RSVP here.

5 comments

A Posterboy for Advertising’s Pro-Consumer Quid Pro Quo

by Berin Szoka on June 28, 2009 · 23 comments

The advocates of regulation pay lip service to the importance of advertising in funding online content and services but don’t seem to understand that this quid pro quo is a fragile one: Tipping the balance, even slightly, could have major consequences for continued online creativity and innovation.

Who is this handsome young man and why does he have “Mr. Yogato Stamped Me!!!” on his forehead? More importantly, why does he look so darn happy?

Flashback: Earlier this week, my partner Michael (pictured) and I visited Mr. Yogato, a frozen yogurt shop in Washington’s Dupont Circle neighborhood which describes itself as “the FUNNEST yogurt experience you’ll ever have.”

Apart from serving exceptionally tasty frozen yogurt and letting customers play a vintage Nintendo, Mr. Yogato is famous for the eight “Rules of Yogato,” which offer discounts if users achieve certain feats, including:

Answering devilishly difficult trivia (10% off—or extra if you fail)
Reciting the Stirling battlefield speech from Braveheart in a great Scottish accent (20% off)

But the best discount, which Michael does every time (unless I’m there to help identify, say, countries that end in ‘L’), is offered for wearing the Yogato stamp on your forehead. Being stamped is, of course, almost as much fun as singing along to “Mr. Roboto” if you’re lucky enough to hear that played while you’re in the shop (10% off). But the real fun is in engaging passersby on the street about the icy-sweet joys of Yogato. It’s also, of course, probably the most effective advertising Mr. Yogato could ever want.

So, the next time you hear Adam Thierer and I talk about the benefits of advertising, especially online, just remember that while there is no free lunch (nor free frozen yogurt), there is discounted frozen yogurt. It’s a simple, obvious quid pro quo: 10% off in exchange for spreading the Gospel of Yogato. Continue reading →

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