In privacy debates about online advertising, the focus is most often on consumers. Consumers love free content, the advertisers and ad networks say. They say consumers are willing to have their online activities analyzed and categorized, because an ad for a minivan that lands in front of a soccer mom is valuable, and valuable ads are what support the free content consumers love. On the other hand, privacy advocates like CDT say that consumers should be in control. We say consumers should know they’re being tracked, and if they’re uncomfortable with the tracking, they should have a way to avoid it. Even if it means one less minivan ad pitched to a soccer mom.

Today, we have a new window into just how comfortable or uncomfortable consumers may be with online tracking.

In survey results released yesterday by Harris Interactive and Alan F. Westin, we find that consumers aren’t quite as comfortable as advertisers and ad networks may want them to be. The 2,513 adults surveyed were told that Web sites like Google, Yahoo!, and MSN can provide free search engines and email accounts because they profit from online advertising. When asked how comfortable they would be with these sites using information about their online activities to tailor ads and content to their interests, 59% of survey respondents said they would not be comfortable, while 41% said they would be comfortable. Similarly, TRUSTe survey results released today revealed that 57% of the 1,015 people surveyed said they are not comfortable with advertisers using their browsing histories to serve them relevant ads.
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Last December CDT and several other organizations submitted a friend-of-the-court (“amicus”) brief urging the Seventh Circuit Court of Appeals to uphold a lower court decision in favor of Craigslist.org. We are happy to report that on March 14 the federal appeals court did just that: it ruled that Craigslist can’t be held liable for discriminatory housing ads posted by the site’s users in violation of the Fair Housing Act. (Chicago Lawyers’ Committee for Civil Rights Under Law v. Craigslist, No. 07-1101). The court held that Section 230 of the Communications Decency Act (47 U.S.C. § 230) granted Craigslist immunity from FHA claims.

While the result of the case is precisely what we advocated– that Craigslist should not be held responsible for arguably illegal online content posted by others – the court’s opinion is a bit murky and has language that might prove to be unhelpful in future Section 230 cases.
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Comcast, in a joint statement with BitTorrent, announced plans for a significant change in the way it responds to network congestion. As noted in a recent post , revelations last year that Comcast sometimes interferes with its subscribers’ P2P upload traffic sparked fears that carriers might play favorites and prompted complaints that led to a pending FCC proceeding on the question of “network management.” CDT isn’t eager to have the FCC adopt formal rules on network management, but having carriers affirmatively degrade selected traffic poses real risks to innovation and competition.

The Comcast/BitTorrent announcement is therefore a welcome development. Comcast now says by the end of the year it will “migrate” to congestion management techniques that are “protocol agnostic.” This sounds a lot like what CDT suggested in its comments to the FCC — namely, that network management practices involving any form of traffic degradation should be evenly applied, rather than singling out specific services or applications. It also sounds like a real departure from the technique Comcast described in its comments, which had Comcast targeting specific P2P applications that had been identified as causing congestion problems in the past.
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Free speech lost a devoted defender late last week. Marv Johnson, who had fought to protect free speech at the American Civil Liberties Union for much of his professional career, passed away after a long struggle with illness.

We, and everyone at CDT, mourn the loss of Marv. We will miss his quick wit and sense of humor, teamwork, and his unfailing willingness to step up to the plate when free speech was on the line. And it often is. Once, Marv volunteered to testify at a hearing in the House of Representatives that everyone knew was going to be difficult for the sole witness who was to advocate for free speech. Marv took every arrow and stone that those advocating limits on speech threw at him, and even caught a couple and threw them right back. Sometimes, it takes courage to be a champion of liberty, and Marv demonstrated that courage.

We have fond memories of visits to Capitol Hill with Marv to caution members of Congress about proposed assaults on the First Amendment. In particular, Marv (and we) would relish our visits when accompanied by friends from across the political spectrum – making clear to the folks on the Hill that both liberals and conservatives thought a particular free-speech-impinging bill on the agenda was a bad (and unconstitutional) idea.

We will miss Marv’s insights and dedication to the First Amendment.

– Greg Nojeim and John Morris, Center for Democracy & Technology

This week, Government Executive launched a new site called NextGov about technology issues in government. I’ve been asked to blog for them about privacy and other related issues. Today, I have a post up in the Tech Insider section about the State Department’s continued privacy violations. Go check it out!

CDT has been suggesting that the Google/DoubleClick merger simply heightened existing concerns on what the industry as a whole is doing. The recent reaction to Phorm’s testing in Britiain and growth in ISP ad targeting industry shows that remains true today.

However, we were hoping that the FTC or the EU would ask Google to explain exactly how the information that DoubleClick collects will be used. Despite the fact that neither government body required this, CDT still believes that it is in Google’s own interest — in order to maintain the trust of its users — to explain fully what it is doing with DoubleClick data, now and as its use of the data evolves.

In particular, questions still remain such as: Will the data still be owned by the marketer as DoubleClick’s contracts require today? Will it be used for behavioral targeting by other Google products? How transparent will any collection be in the future?

We look forward to many more discussions on these issues as Google begins using DoubleClick’s data

Yesterday, I attended the First Annual Freedom of Information Day Celebration at American University’s Washington College of Law (WCL) to kick off Sunshine Week (March 16-22), which celebrates government transparency and freedom of information.

Each year Sunshine Week coincides with the birthday (March 16) of James Madison, who famously wrote in 1822:

“A popular government without popular information or the means of acquiring it, is but a prologue to a farce, or a tragedy, or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power which knowledge gives.”

Yesterday morning’s keynote speaker was Prof. Robert Vaughn of WCL, who is better known as the plaintiff in the 1973 D.C. Circuit case Vaughn v. Rosen. This seminal Freedom of Information Act (FOIA) case set forth the right of a FOIA plaintiff to ask the court to order the government agency defendant to provide a list of the documents that are responsive to the plaintiff’s FOIA request but that the government claims are exempt from disclosure, and to include the agency’s specific justification for withholding each document. This list is also known as a “Vaughn Index.”
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Sunshine week, celebrated nationwide, is dedicated to open government, with events surrounding Freedom of Information and government transparency. Sunshine Week 2008 this year includes some great talks happening in Washington, D.C. and around the country, all focused on the concept of government openness. Yesterday was the National Freedom of Information Day, held on James Madison’s birthday; Madison was a supporter of government openness.

I attended the First Amendment Center’s Freedom of Information Conference on Friday, where there were great panels talking about the Freedom of Information Act (FOIA) and how publicly useful information is often unavailable. One compelling example of this is information suppressed about public infrastructure, like dams and bridges. As one conference participant asked: “What, are you going to hide a dam?”

The FOIA is an important tool for government transparency, but a growing number of Americans see the government as incresasingly secretive, according to a Sunshine Week poll. On a hopeful note, though, almost 90% of respondents said that open government was an important consideration in their presidential and congressional candidates. Maybe the candidates will get the message and we can get to fixing FOIA.

I’m looking forward to the rest of the Sunshine Week events here in D.C., especially Sunlight Foundation’s event with Lawrence Lessig, and other events in D.C.

Advertisers have long characterized the Internet as a marketing gold mine, with an abundance of granular data about the things we like, who we are, and what we shop for. The key has always been in harnessing this data, and online network advertising companies are continually seeking to cast wider and wider nets to learn more about individual users’ tastes and preferences. In recent months, however, a new breed of companies has started tapping into the ultimate source of online information about you – your Internet Service Provider (ISP).

The basic operating model for these new kinds of ad networks goes something like this: they strike deals with ISPs that allow the ad networks to collect and categorize individual Internet traffic streams – so if you do Web searches for airline flights and basketball scores, the ad network might tag you as a traveler and sports fan. As you surf the Web, you will then start to see travel or sports-related ads on sites where the network has purchased advertising space. How much information the ad networks keep, how long they keep it for, and how they go about scrubbing the data to remove personal information varies from company to company.

Given the amount and scope of data that ISPs are beginning to share with these companies, this model raises some serious privacy questions (which I spoke briefly about at the FTC’s recent behavioral targeting town hall meeting). And the early experiences of these companies are starting to prove just how difficult it will be to implement these systems in a privacy-protective manner – if it’s possible at all.

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The foolishness of state legislators when it comes to the Internet apparently knows no limits. After years of losing efforts to censor content online, a new evil has apparently been identified: anonymity. A Kentucky representative has filed a bill to make it illegal to post online without registering a real name, physical address, email address and including full name with all postings. The bill includes hefty fines for sites that permit anonymous speech.

It would be easy to dismiss this bill as simply the uninformed effort of a not very Internet savvy legislator, but to do so misses the point. Anonymity on the Internet is under attack. Whether it was the provocative comment by Donald Kerr, the Principal Deputy Director of National Intelligence who famously declared last fall that “Protecting anonymity isn’t a fight that can be won,” or the zeal with which the nation’s state attorneys general have pursued age verification for social networking sites, the view that anonymous speech is dangerous speech has plainly taken hold.

There are of course times even on the Internet where establishment of identity maybe important, but we seem to have forgotten the value of anonymous speech to our constitutional democracy. As the Supreme Court has made clear, “Anonymity is a shield from the tyranny of the majority.” McIntyre V Ohio Elections Commission (1995). Anonymity is what protects people from expressing an unpopular political view in a community where the majority holds vastly different political views and allows people to safely provide information about government misconduct. And for those living in repressive societies, anonymous speech is an enabler of human rights and political reform. If it was good enough for Publius, it should be good enough for the Internet.

The proposed Kentucky law is particularly dangerous because it not only requires the unmasking of all speakers in all circumstances, it exposes their personal information to potentially millions of people, putting privacy at risk. And since it is the website, rather than the individual, who is on the hook for fines, it puts all Internet sites in the role of gatekeeper, exactly what Section 230 of the Communications Decency Act, 47 USC § 230 was intended to prevent.

It’s no small feat to draft a law that is unconstitutional, clearly preempted by federal law and unenforceable. But many state legislatures are in session and it’s only Tuesday.