Josh Hawley Introduces His Latest Attack On Section 230

from the collect-them-all dept

Guys, I'm beginning to get the feeling that Senator Josh Hawley doesn't like Section 230. I mean, beyond creating a laughably inaccurate and misleading "True History of Section 230," Hawley has now introduced at least four bills to modify or end Section 230. Perhaps if he introduces 10 he'll get a free one. His latest, introduced last week would remove Section 230 for any internet company that has "behavioral advertising." Now I've been skeptical of the value of behavioral advertising in many cases, but this new bill is absurd.

Basically what the bill would do is say that any site that uses behavioral advertising loses 230 protections:

An advertisement server shall be held liable for any claim brought against a covered provider because of the application of subparagraph (B) if, after the covered provider directs the advertisement server not to serve or deliver behavioral advertising to users of the interactive computer service described in subparagraph (A)(iii)(I)(aa) provided by the covered provider (or if the advertisement server fails to provide reasonably accessible means to receive that direction from the covered provider), the covered provider unknowingly takes the action described in subparagraph (B)(i) because of an action taken by the advertisement server, including the failure of the advertisement server to provide the covered provider with a conspicuous disclosure regarding the category of advertisements to be displayed.’’.

Because all bills need to have terrible acronyms, this one is the Behavioral Advertising Decisions Are Downgrading Services Act -- or the BAD ADS Act.

No matter what you think of behavioral ads -- and again, I think they're generally quite lame and don't work nearly as well as people pretend -- the structure of this bill seems absurd. Why should 230 protections have anything to do with what kind of advertising model you use? What does one have to do with another? And what job is it of Congress to change whether or not you're protected from liability of 3rd party speech based on what kind of business model you use?

Again, this just seems like yet another example of Josh Hawley (who pretends to be a "small government" Republican) seemingly wanting to be the product manager for the internet. He doesn't like Section 230. He doesn't like behavioral advertising. So, no problem, as a Senator, he moves to outlaw them. Why? Because he doesn't like them. This seems like the kind of big government intrusions into private business that Hawley used to scream about.

Of course, being in the Senate, rather than actually working for a living as a product manager, means that Hawley doesn't have to deal with (or care about) the inevitable fallout from any such change to the law. It would almost certainly harm smaller companies which would be much more limited in what kinds of advertising they could use to support their own sites. As someone who would love to remove all behavioral advertising from our own site (and have tried to multiple times), we've found that the market just isn't there for non-behavioral ads right now. That means it would likely dry up revenue for a ton of sites. Google and Facebook could figure out ways to deal with it. Everyone else? Who knows.

There are, of course, also significant Constitutional questions about this. Why should liability for 3rd party content depend on what kind of business model your site uses? The two seem wholly disconnected, and it seems that this bill could be seen as an attack on free speech and free enterprise (both things Hawley pretends to support). As with many Hawley bills, this one appears to be mostly for show, to appeal to his base of ignorant people who think there's a culture war going on against "big tech" that plays out only by attacking Section 230.

Filed Under: advertising, behavioral ads, behavioral advertising, josh hawley, section 230, targeted advertising

On Second Thought... NebuAd Not Really Dead... Re-Emerges In The UK Under An Assumed Name

from the nice-one! dept

After writing about how NebuAd had shut down, a commenter pointed out this wasn't quite true. Instead, it appears the company has just re-appeared under a different name in the UK... where officials have ruled that clickstream tracking behavioral advertising can be legal (though that's gotten the UK into trouble with the EU). Apparently, NebuAd had opened a UK office, and with the shutdown of US operations, the UK office re-branded as Insight Ready Ltd., but it appears to be the same basic company, including same employees. And the Insight Ready domain name was registered by NebuAd....

Filed Under: behavioral advertising, clickstream tracking, uk
Companies: insight ready, nebuad, phorm

Ding Dong, NebuAd Is Dead

from the so-much-for-that-plan dept

While it took many months since Congress made it clear that NebuAd's somewhat sneaky clickstream tracking/behavioral advertising plans were almost certainly illegal, it appears that the company has finally shut down completely. The similar Phorm remains in operation in the UK, but is still facing significant legal scrutiny and has been running around trying to convince everyone that it's system doesn't violate anyone's privacy. Either way, there's a good lesson to be learned: while it may seem that individuals don't pay all that much attention to their privacy rights, if you cross the line and abuse what people feel is sacred, it's going to come back to bite you.

Filed Under: behavioral advertising, clickstream tracking
Companies: nebuad

New FTC Chair's Views On Google, Broadband Competition And Behavioral Advertising

from the sounds-decent-so-far... dept

We've been receiving a series of different reports from different folks about a recent interview that new FTC boss, Jon Leibowitz, gave on CSPAN. Leibowitz has been in the FTC for a while, though, he's yet another former entertainment industry lobbyist in the administration (he was VP of Congressional Affairs for the MPAA from 2000 to 2004). So far, however, he seems to be taking quite reasonable positions on a variety of topics (though, some questionable views on other areas). Questioned about Google's dominance in the market (something that the FTC has been investigating for a while now), he pointed out that dominance is "the American way" and not necessarily an antitrust violation:

Google has certainly has a dominant position in search advertising. There's no doubt about that. From our perspective, just having a dominant position doesn't in any way violate the law. It's if you do something -- as the Justice Department in the 1990s alleged that Microsoft did -- to exclude competitors illegally, that's when it becomes a problem.

If you get to a dominant position or a monopoly position by virtue of your own acumen, that's really the American way.

Then there's broadband competition, where he definitely does appear to be concerned about the lack of competition and the lack of transparency from current broadband providers:

We believe consumers need to have notice and consent about what they're getting. It's very, very important that these providers tell consumers about the speed they're getting, and whether (ISPs) are making any types of management decisions in terms of the network that affect consumers....

In a perfect marketplace where you had more competitors, you wouldn't need the government necessarily to be terribly involved. Particularly in the consumer protection area, we have a big roll to play. Broadband is a deregulated product. That's good, we like deregulation generally. But when you have deregulation, you also have law enforcement to make sure people do the right thing.

And, then, there's the question of behavioral advertising, where he believes that opt-in, rather than opt-out, makes a lot of sense:

I think some of the more enlightened companies do do opt-in. I think a lot of them don't. I think the better practice is always opt in.

On the whole, then, he seems to not be too quick to bash companies for being successful, and seems to recognize that competition and transparency are important issues. Those are all good things. There are some fears however, that he's a bit quick on the trigger when it comes to regulating over that behavioral advertising issue, and doesn't seem to mind metered broadband, so long as customers know what they're getting.

Filed Under: anti-trust, behavioral advertising, broadband, competition, ftc, jon leibowitz, transparency

UK Officials Accused Of Colluding With Phorm

from the that-would-not-be-good dept

While the US quickly condemned clickstream tracking as a likely violation of privacy, many were quite surprised when UK officials went in the other direction, suggesting that Phorm's tracking was legal. The European Commission was so annoyed by this that it's taking legal action against the UK for privacy violations. But, still, many people are wondering why the UK government said something like Phorm was legal... and now accusations are coming out that it's because UK government officials let Phorm take part in writing the policy. There are a bunch of incriminating emails between the Home Office and Phorm, including one where officials ask Phorm execs if they would be "comforted" by the position the gov't was about to take. In another, the officials ask Phorm to review the document and give feedback, prior to the gov't releasing the actual policy. Talk about regulatory capture... The government, for its part, claims that people are misreading the emails, but it's difficult to see how the emails can be misread when they blatantly ask Phorm to review the document, and inquire whether the company and its partners will be comforted by the ruling.

Update: On top of this, it appears that Phorm is now lashing out at critics, claiming that they're "smear merchants" and "privacy pirates." That sounds convincing...

Filed Under: behavioral advertising, collusion, privcy
Companies: phorm

Did AT&T Lie To Congress About Using Behavioral Advertising?

from the questions-questions-questions dept

Congress is apparently holding hearings this week about behavioral advertising -- the controversial online practice of targeting ads to people based on where they surf. In the past, Congress has suggested that firms such as NebuAd that do this are breaking the law. However, it appears that AT&T may have been less than truthful in its own testimony. The company took a hardline stance against behavioral advertising that wasn't clear and set up as an opt-in approach. Yet, as MediaPost notes, a top behavioral advertising company named Audience Science, lists AT&T as a customer and has a testimonial on the site. When a Congressional Rep asked AT&T's policy VP who was testifying about the company (accidentally calling it "Audio Science"), AT&T claimed it didn't have a relationship with the company. When the MediaPost reporter asked Audience Science about all of this, AT&T's logo suddenly disappeared from the company's website.

Now, it seems quite likely that this is all a rather innocent mistake -- and the AT&T VP, Dorothy Attwood, simply didn't know about the company's relationship with Audience Science. AT&T is a big company, and certainly the left hand might not always know what the right hand is doing -- but that's a big part of the problem here. Even when an official company policy might be to avoid these sorts of things, there's as half decent chance that someone lower down on the totem pole has signed off on a deal to make use of these technologies.

Filed Under: behavioral advertising, congress
Companies: at&t, audience science

Europe Begins Legal Action Against The UK For Allowing Phorm To Proceed

from the a-little-privacy,-please dept

We were quite surprised when the UK gave a basic approval of Phorm's clickstream tracking/behavioral advertising effort -- despite widespread consumer outrage that their internet surfing was being tracked and sold for advertising purposes. And given that simple approval, Phorm has been looking to aggressively expand. However, it appears that other officials may have a different idea. The European Commission has "started legal action" against the UK for allowing Phorm to proceed, saying that it seemed likely to violate European privacy rules. Who knows if this will actually go anywhere, but it seems pretty clear that the rather widespread mistrust of Phorm is making sure that it's not able to do much at all without additional scrutiny.

Filed Under: behavioral advertising, clickstream tracking, europe, privacy, uk
Companies: phorm

Anti-Spyware Companies Debate Blocking ISP-Injected Advertising

from the the-battle-continues dept

With a growing number of ISPs using services from companies like Phorm and NebuAd to inject ads into your web browsing based on your surfing habits, anti-spyware companies are starting to take notice and debate whether or not they should start blocking some of these activities. While there's no downloaded software, these services all use cookies to track your surfing habits, and anti-spyware offerings could certainly step in and block those cookies or more proactively warn users that their surfing data is being used in this manner. Considering how hard Phorm has worked to shed the "spyware" label it had been given in a previous life, the company can't be too pleased to hear about this development. Of course, it's probably more concerned with questions being raised about whether or not its service is even legal.

Filed Under: anti-spyware, behavioral advertising, clickstream treacking, spyware
Companies: nebuad, phorm

Now Consumer Groups Want A 'Do Not Track' List

from the and-how-would-that-work-exactly? dept

While the "Do Not Call" list in the US has mostly been successful (with some glaring exceptions) in cutting down on intrusive telemarketing calls, it has kicked off a somewhat annoying trend for consumer groups to demand all sorts of other "Do Not X" lists. Popular for a while was the idea of a "Do Not Spam" list, which most folks realized would be almost impossible to administer. Now, some consumer groups are pushing for a similar "Do Not Track" list, following all of the recent stories about behavioral marketing and clickstream tracking. This list would, its proponents claim, let people opt-out of allowing advertisers to track them. Again, though, this idea would be nearly impossible to manage in real life. In most cases, advertisers have no real idea of who they're tracking anyway -- so it's difficult to see how one would "opt-out" of such data collection in the first place. It would seem that a much more efficient (and effective) solution is to just let the technology evolve to the point that users can block such tracking activities on their own. In many cases, that's already possible. On top of that, as companies like Phorm are discovering, the public outcry against even the possibility of doing something bad concerning clickstream tracking will hopefully keep these firms in check.

Filed Under: behavioral advertising, click tracking, clickstream, do not track, targeted advertising

No Targeted Ads For AIDS & Cancer Patients; But Drug Addicts & Dead People Are Fair Game

from the you-gotta-have-some-standards dept

Last month, we discussed how behavioral targeting of advertising risked seriously creeping people out, if it reached that "uncanny valley" of being a little too targeted, but not yet useful. It seems that behavioral targeted advertising firms are trying to deal with this by working together to come up with a set of standards covering what topics are taboo when it comes to targeted advertising. Cancer and AIDS patients, rejoice. Advertisers have decided not to target you. However, if you're old, addicted to drugs, religious, a convicted felon or dead, you're fair game. Dead? Well, the ad group says it meant the "death" category to be for targeting ads at relatives making funeral plans ("Death in the family? Get a casket for 20% off!"). How thoughtful of those advertising groups.

Filed Under: ads, aids, behavioral advertising, cancer, targeted ads