Nestled in among the latest round of public comments solicited by the Federal Trade Commission on “behavioral advertising” was a little gem: a filing by the Newspaper Association of America arguing that online news outlets have a First Amendment right to track the activities of website visitors in order to target advertisements to them.
If your first reaction is “huh?,” note that there is ample precedent for this flavor of claim. The validity of the Fair Credit Reporting Act and the National Do-Not-Call list were each disputed on First Amendment grounds. Almost a decade ago, common carriers successfully challenged a Federal Communications Commission rule that a carrier must secure affirmative, opt-in consent before using customer proprietary network information to select out customers to whom to pitch new services. The Tenth Circuit held that the FCC’s restriction on targeted commercial speech implicated the First Amendment, even where the carrier could engage in the same speech to a general audience, and invalidated the Commission’s rule as restricting more speech than necessary. Of course, the customer information at issue in U.S. West v. FCC was already in the possession of the carriers by virtue of their provision of the service; the question was whether they could use that information to target a particular commercial message, subject to an opt-out. (The Commission has since reinstituted the rule and it has been challenged again on the same ground.) Here, the NAA is arguing that the FTC cannot intercede on behalf of consumers to restrict the activity of gathering user information, because the data could ultimately be used to target speech. As unconvinced as I am by the NAA’s reasoning, companies have managed to gain traction with such arguments in the past. And you cannot blame an industry for trying, especially one for whom the Internet poses both an enormous opportunity and an existential threat. What alarms me about the NAA’s comments is actually not the arguments, but the prose. The NAA's rhetoric evidences an obvious disdain for consumers and their privacy interests. The tone struck by veterans of this space helps set a baseline. Google “believe[s] user trust is essential to building the best possible products”; Microsoft “agrees with the Commission that the collection of information about consumers to generate a profile of their behavior upon which ads can be targeted raises heightened concerns that warrant additional levels of user control.” These companies continue to take the seductive tack of reminding the Commission of the benefits of online advertising, acknowledging the dangers, and showcasing their particular commitments to user privacy. New entrants – such as ISP-powered advertisers NebuAds and Phorm – follow a similar line. The NAA will have none of that. The Association labels the FTC’s suggestion that consumers should be able to opt out of ad targeting as giving consumers a “veto over a website’s internal operations.” The Association asserts unequivocally that “[t]here is no precedent for giving a website visitor a right to dictate the terms on which he or she will use a website.” If a customer does not want to experience tracking she can “choos[e] not to use a website altogether.” The NAA denies that there is any harm associated with behavioral advertising, a view it attributes to the FTC. The NAA even puts quotes around “their” in the term “their information,” lest it inadvertently concede that users, rather than websites, own gathered data. Compare Google’s “[w]e take seriously the need to protect the information that our users entrust with us.” Why this aggression? Was the NAA enlisted as bad cop? Does it seek to intimidate the FTC with the impression that it will not hesitate to challenge the FTC’s rules in court? My theory is actually that the NAA is used to another, rougher playground. At the FCC, it’s every newsman for himself.