Congress takes aim at behavioral targeting

Just as things are starting to get interesting in terms of lead generation and audience development, here comes Washington with possible legislation that could curb advances in behavioral targeting (a.k.a. behavioral marketing or behavioral advertising).

U.S. Representative Rick Boucher of Virginia is championing the online privacy cause by crafting a bill that aims to limit behavioral targeting practices by requiring media companies to disclose what information they are gathering, as well as how it is being gathered and what the user can do about it.

While it's quaint to think that there are really consumers out there who don't think their behavior is being monitored, possible legislation in this area, which has ambled along for years under self-regulation, could hinder innovation. When Boucher unveils his bill, there will be two main red flags for media companies: 1) language that will limit future opportunities as behavioral targeting practices and technology evolve, and 2) language that does not distinguish between user information gathered for the good of commerce (B2B data, for example) and user information gathered simply to target advertising.

“Online media companies should be meeting basic privacy principles—it's good for business and is the law in many jurisdictions,” said Professor Michael Geist, consulting editor with BNA Internet Law News. Of course, he's right. But how often does one walk down a city street to have someone rush out of a building and shout, “heads up, our security camera just filmed you walk by”?

"Privacy legislation has existed in many countries since well before Internet-based behavioral targeting,” said Geist. “The key is to develop legislative solutions based on fundamental principles such as requirements to obtain appropriate consents for the collection, use and disclosure of personal information.” He's talking about opt-ins, which publishers fear will overwhelm users.

Here's where media companies could get involved with the conversation and stop messing around with opt-outs that don't work. (Sure, the user didn't click ALL the way through ALL the opt-out options, but they indicated that they don't want your newsletter anymore and, since you won't stop sending it to them, now they hate you.) After all, what Boucher's bill signifies for media companies is that consumers don't want to be tricked. They want to be in control of their content consumption and they want some boundaries.

Boucher missed his scheduled interview with eMedia Vitals, and was subsequently not available for comment, so it remains uncertain whether or not he is considering in his bill media concerns such as the evolving platform and various uses for gathered data.

In the matter of cookie-gathered information being used for the good of commerce, Geist pointed out that most privacy rules are premised on personally identifiable information (PII). “If we are dealing with a business, it isn't PII,” he said.

That's a good point worthy of response by publishers and agencies. Now is the time to get involved, so here are some points to remember—provided by American Business Media—on the way to Washington:

• To what extent will government regulation of behavioral advertising either discourage it (by making it burdensome or by discouraging its use through an opt-in model), or possibly encourage it (by giving consumers confidence in their ability to control use of their browsing information)?
• To what extent might government regulation cover not only third-party ads but also "first-party" ads and contextual ads?
• Whatever the effects of regulation, who will benefit from those effects—for example, will first-party advertisers benefit if third-party behavioral advertising is burdened by an opt-in model? Or will regulatory burdens on any aspect of behavioral advertising so chill this new technique that all advertisers will be harmed?
• If Congress keeps its hands off behavioral advertising, how will the self-regulatory principles affect first- and third-party advertising? Will website owners benefit from increases in valuable behavioral advertising posted through ad networks, or will ad networks become more powerful competitors against first party advertisements?

Bonus coverage: a timeline of key events in online privacy