ACLU Asks Congress for Protection From Behavioral Marketing Data Collection

The ACLU recently submitted a statement about behavioral advertising to the Joint Subcommittee Hearing of the House Energy & Commerce Committee. The statement explained that wide collection of personal information of a consumer "draws a personal portrait unprecedented in scope and detail" and asked Congress to pass laws that protect us from having this information accessed and used against us.

What is Behavioral Marketing?

Behavioral marketing directs specific advertisements to you based on an incredibly detailed profile of you, which might include your real identity and address, the websites you have visited, your Internet searches, your online purchases, your LinkedIn or MySpace profile, your Facebook or Twitter posts, and more. This type of advertising can be much more intrusive than "contextual advertising," or ads shown to you based solely on a web page you are currently viewing or search that you just performed. Based on what you have bought, read, or posted in your social networking account, the profile might indicate your political and personal beliefs, your health concerns, and even your sexual orientation.

This profile may be assembled in three different ways: (1) a web site tells a company any information they have about you, information gathered when you created an account or on subsequent visits; (2) your behavior is linked across multiple websites, often by using cookies (small bits of digital information stored by a site on your computer, which help a site or advertiser monitor when you access their site and what pages you look at); (3) the information is purchased from a commercial database.

Companies buy and sell the data in these profiles. Data aggregation companies–like Acxiom and ChoicePoint–collect personal details from many sources to create and sell even more detailed profiles to third parties. The third parties may be advertisers, but they can also be credit issuers who may issue or deny loans or credit cards based on this information, insurance companies, companies who do background checks for employers, or even the government itself.

The ACLU particularly expressed concern that the government may try to access these behavioral marketing profiles, which might tell the government about your political, religious, or personal beliefs:

We . . . know that the C.I.A., via its investment arm In-Q-Tel, has invested in a software company that specializes in monitoring blogs and social networks. We also know the government has accessed, and likely continues to access, other private databases of personal information. For example, the Department of Defense, the C.I.A., and the F.B.I. have all purchased use of private databases from Choicepoint, one of the largest and most sophisticated aggregators of personal data. In the words of the F.B.I., "We have the legal authority to collect certain types of information" because ChoicePoint is "a commercial database, and we purchase a lot of different commercial databases. . . . They have collated information that we legitimately have the authority to obtain."

ACLU Recommendations to Congress

In order to protect your privacy, the ACLU recommended that Congress pass laws so that: (1) the government must get a warrant before accessing personal profiles collected by behavioral marketers; (2) third party litigants must show a compelling interest in order to subpoena the information; and (3) anyone harmed by these marketing profiles will have a private right of action.