Balancing Privacy and Free Speech in ‘Behavioral Targeting’

MakingItLegalBlog

Posted on April 1, 2013 in IP & Social Media

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You may not know it by name, but you’ve probably experienced it before. You order a book from a website such as Amazon.com and then get a little popup ad. Or you’re redirected to a page that says, “Nina, if you liked Where the Wild Things Are, you might also like these others books/CDs, etc. . . . ” That’s called “behavioral targeting.” It’s the way that websites collect personal information about you and your preferences and use that information to try to sell you more stuff along the lines of what you already bought. When I’m on a shopping spree and eager to read or listen to something new, I love that feature. How convenient!

But when I think about how my private, personal preferences can so easily become known and shared with others, it’s more than a little disturbing. What if, instead of Where the Wild Things Are, my preferences ran more along the lines of Debbie Does Dallas? Would I really want that known? (Just for giggles, I checked on Amazon.com and yes, you can buy it there!)

There’s a delicate balance between privacy rights and free speech, as Wendy Davis of Just an Online Minute pointed out yesterday. Courts have tended to give less protection to “commercial speech,” which is how ads tend to be classified. But in today’s e-commerce world, does behavioral targeting go further in violating your privacy rights than, say, getting a cold call for investment products during dinnertime? Should you have a right to opt out of these kinds of ads? The Federal Trade Commission is now looking at this issue, so we’ll see where the legal restrictions ultimately fall.

Many thanks again to Lena West of Tech Forward for the tip!

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