Behavioral tracking of consumers online in order to deliver relevant advertising is a privacy issue that is receiving a lot of attention, and one that has been the focus of Federal Trade Commission and consumer group scrutiny. On September 25th, the United States Senate Commerce Committee held a hearing on online privacy and received commitments from the three industry representatives (from AT&T, Verizon and Time Warner Cable) that if they do deploy technologies that are able to track consumer online behavior in order to tailor advertising, that consumers will have clear notice and a full opportunity to provide affirmative consent. None of the companies currently use such technologies in their roles as Internet Service Providers. The broadband providers challenged the rest of the online industry, including web site operators and application providers such as Google, to provide the same protections to consumers. Essentially, the witnesses called for an end to “opt out” when it comes to online advertising.
Dorothy Attwood, senior vice president of Public Policy and Chief Privacy Officer for AT&T, said her company was committing to a policy of “advance, affirmative consumer consent,” a phrase that she said is “generically referred to as “opt-in.” Attwood made clear that a “consumer’s failure to act will not result in any collection and use by default of the consumer’s information for online behavioral advertising.” Tom Tauke, Verizon’s Executive Vice President for Public Affairs, Policy and Communications, said that any kind of consumer protection practices must include “meaningful consent” from the consumer. Tauke went on to explain that “meaningful consent” requires transparency, affirmative choice and consumer control. Peter Stern, Chief Strategy Officer for Time Warner Cable, took a similar stance and also made a strong commitment to affirmative consumer choice when it comes to displaying different online ads to a consumer based on that consumer’s behavior on unrelated web sites. Gigi Sohn, President of the public interest group Public Knowledge applauded the companies’ commitments to affirmative consumer choice but expressed concern over the activities of other companies that might deploy technology known as deep packet inspection to monitor online activity in order to deliver ads. Commerce Committee Chair Senator Byron Dorgan (D-ND) asked Ms. Sohn whether she thought there were legitimate uses for deep packet inspection notwithstanding her concerns, and she conceded that there were such legitimate uses. Her concern, she said, was not with the technology but with possible misuse of it. She called for federal regulation of online behavioral marketing. The Senators present did not express an immediate need for such legislation in light of the continuing examination of the issue and the self-regulation that is occurring.