Behavioral Targeting May Be Illegal

from the smells-like-wiretapping dept

A bunch of ISPs have been experimenting with systems such as Phorm and NebuAd that monitor their users' online behavior and create profiles that help third parties create more targeted advertisements. Back in March we noted that behavioral advertising may be illegal under UK law. And last week we reported that Congress was asking some tough questions about the plans. CNet's Declan Declan McCullagh has an in-depth look at American law, and concludes that such systems are probably illegal here too. The problem is that what Phorm and NebuAd do sounds a lot like wiretapping, and wiretapping is illegal under several federal laws. At least three federal laws govern when electronic communications providers can disclose their customers' communications to third parties. One of the key questions Declan looks at is consent: the law generally allows eavesdropping with customer consent, but the exact nature of the consent isn't clear. ISPs have tended to be very secretive about their use of these systems, so at the very least, privacy laws would require that ISPs disclose what they're doing and give consumers a way to opt out. But Declan suggests that this might not be sufficient. Some of the legal experts he talked to think the law would require the ISPs to obtain the affirmative consent of customers before commencing the use of these programs. Since it's hard to imagine customers being enthusiastic about having their ISPs eavesdrop on them, such a requirement might make these programs non-starters.

Filed Under: behavioral targeting, clickstream data, privacy, wiretapping
Companies: nebuad, phorm

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  1. identicon
    Jake, 22 May 2008 @ 3:36pm


    Doesn't personal responsibility come into this? Yes, the opt-out should be reasonably simple to perform and the ISP has to be transparent about what they're doing, but as far as I'm concerned anyone too lazy and/or ignorant to take a little bit of control over their own privacy has no right to complain that nobody else is willing to do it for them.

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