Category: Advertising

6

Privacy: For the Rich or for the Poor?

Some consider the right to privacy a fundamental right for the rich, or even the rich and famous. It may be no coincidence that the landmark privacy cases in Europe feature names like Naomi Campbell, Michael Douglas, and Princess Caroline of Monaco. After all, if you lived eight-to-a-room in a shantytown in India, you would have little privacy and a lot of other problems to worry about. When viewed this way, privacy seems to be a matter of luxury; a right of spoiled teenagers living in six bedroom houses (“Mom, don’t open the door without knocking”).

 

To refute this view, scholars typically point out that throughout history, totalitarian regimes targeted the right to privacy even before they did free speech. Without privacy, individuals are cowed by authority, conform to societal norms, and self-censor dissenting speech – or even thoughts. As Michel Foucault observed in his interpretation of Jeremy Bentham’s panopticon, the gaze has disciplinary power.

 

But I’d like to discuss an entirely different counter-argument to the privacy-for-the-rich approach. This view was recently presented at the Privacy Law Scholar Conference in a great paper by Laura Moy and Amanda Conley, both 2011 NYU law graduates. In their paper, Paying the Wealthy for Being Wealthy: The Hidden Costs of Behavioral Marketing (I love a good title!), which is not yet available online, Moy and Conley argue that retailers harvest personal information to make the poor subsidize luxury goods for the rich.

 

This might seem audacious at first, but think of it this way: through various loyalty schemes, retailers collect data about consumers’ shopping habits. Naturally, retailers are most interested in data about “high value shoppers.” This is intuitively clear, given that that’s where the big money, low price sensitivity and broad margins are. It’s also backed by empirical evidence, which Moy and Conley reference. Retailers prefer to tend to those who buy saffron and Kobe Beef rather than to those who purchase salt and turkey. To woo the high value shoppers, they offer attractive discounts and promotions – use your loyalty card to buy Beluga caviar; get a free bottle of Champagne. Yet obviously the retailers can’t take a loss for their marketing efforts. Who then pays the price of the rich shoppers’ luxury goods? You guessed it, the rest of us – with price hikes on products like bread and butter.

 

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2

Stanford Law Review Online: The Money Crisis

Stanford Law Review

The Stanford Law Review Online has just published an Essay by former U.S. Senator Russ Feingold entitled The Money Crisis: How Citizens United Undermines Our Elections and the Supreme Court. Senator Feingold explains how the Supreme Court decision in Citizens United threatens the integrity of our political process:

As we draw closer to the November election, it becomes clearer that this year’s contest, thanks to the Supreme Court’s 2010 Citizens United decision, will be financially dominated by big money, including, whether directly or indirectly, big money from the treasuries of corporations of all kinds. Without a significant change in how our campaign finance system regulates the influence of corporations, the American election process, and even the Supreme Court itself, face a more durable, long-term crisis of legitimacy.

[In Citizens United,] the Court was presented with a narrow question from petitioners: should the McCain-Feingold provision on electioneering communications (either thirty days before a primary election or sixty days before a general election) apply to this movie about Hillary Clinton? The movie, of course, was not running as a normal television commercial; instead, it was intended as a long-form, “on demand” special.

Yet Chief Justice Roberts clearly wanted a much broader, sweeping outcome, and it is now clear that he manipulated the Court’s process to achieve that result. Once only a question about an “on-demand” movie, the majority in Citizens United ruled that corporations and unions could now use their general treasuries to influence elections directly. Despite giving strenuous assurances during his confirmation hearing to respect settled law, Roberts now stands responsible for the most egregious upending of judicial precedent in a generation. As now-retired Justice John Paul Stevens wrote in his dissent to the majority in Citizens United: “[F]ive Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”

He concludes:

The Court has a clear opportunity. A new challenge from Montana could allow the Supreme Court to reconsider its decision in Citizens United, and at least two justices have hinted that the 2010 ruling is untenable. In granting a stay of a Montana Supreme Court decision upholding that state’s anticorruption laws, Justice Ginsburg, writing with Justice Breyer, found the pulse of the chaos Citizens United has wrought: “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Commission, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’”

Justice Ginsburg is correct. Today’s framework for corruption cannot stand.

Read the full article, The Money Crisis: How Citizens United Undermines Our Elections and the Supreme Court by Russ Feingold, at the Stanford Law Review Online.

Note: corrected for typos

0

Innovation (as in Beer!) – The Punch Top Can and Lawsuits to Come

Yes! You can now shotgun a beer with less trouble and mess than before. I saw an ad for the new Punch Top can by Miller Light and couldn’t believe it. The claim is that the new hole is for a “smoother pour.” (see the ad below). Come on. This innovation is about shotgunnig beer. This post captures the snark

Now, it’s only been two years since the brand unveiled the “Vortex Bottle,” a seemingly useless and unnecessary bottle design feature that has somehow lasted 23 months longer than anyone expected. Undoubtedly, the success of the swirly bottle neck has influenced the powers that be at Miller Lite to carry over their brand of “science” to cans. I can only imagine what the supporting market research looks like: “In our study, seven out of 10 brospondants said that when they shotgun cans of cheap beer to the amusement and horror of their friends, they opt for Miller Lite. Of those that answered positively, four out of five said that they have been wounded by the jagged aluminum the occurs in the wake of puncturing the can with their car keys, which reportedly ‘hurts like a bitch.’”

Lawsuits ahead? Sure why not? 1. Campus and underage drinking events mean someone will get alcohol poisoning or get hurt after drinking from these cans. Of course as the industry says Drink Responsibly (and in the ad, “Great Beer, Great Responsibility (with a TM it seems, so don’t go talking about great responsibility even if you are Spiderman’s uncle or maybe Marvel will sue. Hey I found another lawsuit!); but they offered the tool, so go get ‘em. Oh and other shot gun tools are available just search for beer shotgun under images in Google for an example. 2. How about a patent suit? Maybe. It seems Coors tried this innovation path a couple years ago. OK not really. It was a joke as far as I can tell. But one comment said no one would do it. And now the joke is real.

Innovation, as in beer!

7

Santorum: Please Don’t Google

If you Google “Santorum,” you’ll find that two of the top three search results take an unusual angle on the Republican candidate, thanks to sex columnist Dan Savage. (I very nearly used “Santorum” as a Google example in class last semester, and only just thought better of it.) Santorum’s supporters want Google to push the, er, less conventional site further down the rankings, and allege that Google’s failure to do so is political biased. That claim is obviously a load of Santorum, but the situation has drawn more thoughtful responses. Danny Sullivan argues that Google should implement a disclaimer, because kids may search on “Santorum” and be disturbed by what they find, or because they may think Google has a political agenda. (The site has one for “jew,” for example. For a long time, the first result for that search term was to the odious and anti-Semitic JewWatch site.)

This suggestion is well-intentioned but flatly wrong. I’m not an absolutist: I like how Google handled the problem of having a bunch of skinheads show up as a top result for “jew.” But I don’t want Google as the Web police, though many disagree. Should the site implement a disclaimer if you search for “Tommy Lee Pamela Anderson”? (Warning: sex tape.) If you search for “flat earth theory,” should Google tell you that you are potentially a moron? I don’t think so. Disclaimers should be the nuclear option for Google – partly so they continue to attract attention, and partly because they move Google from a primarily passive role as filter to a more active one as commentator. I generally like my Web results without knowing what Google thinks about them.

Evgeny Morozov has made a similar suggestion, though along different lines: he wants Google to put up a banner or signal when someone searches for links between vaccines and autism, or proof that the Pentagon / Israelis / Santa Claus was behind the 9/11 attacks. I’m more sympathetic to Evgeny’s idea, but I would limit banners or disclaimers to situations that meet two criteria. First, the facts of the issue must be clear-cut: pi is not equal to three (and no one really thinks so), and the planet is indisputably getting warmer. And second, the issue must be one that is both currently relevant and with significant consequences. The flat earthers don’t count; the anti-vaccine nuts do. (People who fail to immunize their children not only put them at risk; they put their classmates and friends at risk, too.) Lastly, I think there’s importance to having both a sense of humor and a respect for discordant, even false speech. The Santorum thing is darn funny. And, in the political realm, we have a laudable history of tolerating false or inflammatory speech, because we know the perils of censorship. So, keeping spreading Santorum!

Danielle, Frank, and the other CoOp folks have kindly let me hang around their blog like a slovenly houseguest, and I’d like to thank them for it. See you soon!

Cross-posted at Info/Law.

1

The Valentine’s Day Gift That Keeps On Giving

Bluemountain is a “freemium” site owned by American Greetings.  That is, it allows some free card sending and also offers a subscription for premium cards.  This card was from a subscription account and retrieved from the person who received the card.  The box above on the right lists the companies that either have placed cookies in the person’s browser in the process of loading the card, or that are checking for previously placed cookies.

The names includes some of the biggest players in cross-site behavioral advertising business.  Bluemountain’s privacy policy isn’t clear about the kinds of data these firms can learn about the recipients of its cards.  Based on what happens elsewhere on the web, one would suppose that what the firms conclude about the receiver’s card-viewing will be connected to other data about the recipient.  (Could the social connections—who sent the card to whom—also be a part of what Facebook and ClearSaleing, and other firms with social-marketing interests are after?)  Inferences about the meaning of these data can affect the ads, discounts, and other content the person gets elsewhere.  Alone the phenomenon may seem trivial.  In the context of streams of data collection, and moving into a future of increasingly sophisticated big-data analytics, it raises important social issues.

The process is transparent; your Valentine recipient wouldn’t normally see it.  This box is the result of a Ghostery application that reveals them.

0

The Disconnect Between What People Say and Do About Privacy

In the course of my research I’ve been fortunate to be able to speak at length with media planning executives and practitioners.  They spend much of their time figuring out how to use data to send commercials to targeted segments and individuals online.  When the conversation turns to privacy issues, they invariably dispute that the public is genuinely concerned with the topic.  “When they respond to your surveys people may claim to worry about privacy issues,” the industry practitioners tell me. “But look at what they actually do online.  People will give up personal information just to get a discount coupon.  And look what they reveal about themselves on Facebook!  The disconnect between what people say and do shows that policymakers and academics misjudge the extent to which the public really cares about the use of data about them by marketers.”

It’s an interesting argument and one that must be taken seriously.  One response I give is that people are indeed complex, but their behavior doesn’t mean they are two-faced when it comes to privacy.  Rather, findings from national telephone surveys (conducted by me and with colleagues) going back to 1999 show that the majority of Americans are deeply unaware about what goes on with their information about them online.  They know companies follow them, but they have little understanding of the nature of data mining and targeting.  They don’t realize companies are connecting and using bits of data about them within and across sites.  They think that the government protects them regarding the use of their information and against price discrimination more than it does.  And over four surveys, about 75% of adult Americans don’t know that the following statement is false: “When a website has a privacy policy, it means that the site won’t share information about you with other companies without your permission.”

“Why don’t Americans know such things?” industry practitioners often ask me after I recite such findings.  “And why don’t they use anonymizers and other technologies if they are so concerned about leaking data about themselves?”  My answer to that typically takes the form of “people have a life.”  Learning ins and outs about the online world can be complex, and people have so many priorities regarding their families and jobs.  Too, when they go online, whether to Facebook, YouTube or a search engine, they want to follow their needs and leave.  In moments of rational contemplation they may well indicate web wariness.  But online their need to accomplish particular goals and often engage in emotional relationship-building may trump rationale calculation.  Chris Hoofnagle, Jennifer King, Su Li, and I inferred this pattern even from young adults—men and women 18-24 who common wisdom suggests wouldn’t care a whit about privacy.[1]

There is an additional explanation for people’s lack of knowledge about how data about them are treated under the internet’s hood.  Unfortunately many of the most prominent digital-marketing actors engage in a kind of doubletalk about their use of information.  It’s a consistent pattern of public faux disclosure that may simultaneously encourage people’s confidence in the firms’ activities and obfuscate the privacy issues connected with those activities.  And some of the biggest players engage in this privacy-doublespeak dance.

Consider how Google recently told its users about its decision to link information about their activities across its most popular services and multiple devices beginning March 1.  The consolidation was clearly a response to a number of developments.  Strategically, Google wanted to use its previously siloed data in ways that would be competitive to its increasing competitor, Facebook.[2]  More tactically, Google was motivated by the firm’s need to meet a European-Union directive that beginning May 1 all advertisers must obtain consent from their customers to allow websites to set cookies.  In the words of the U.K. trade magazine New Media Age, “Consolidating its multiple privacy policies, of which it has over 60, for all its accounts will mean consumers only have to give consent once for it to be effective across all Google products.”[3]

In the U.S. Google faced a major risk with the data consolidation.  The company had to know that some would see the action as violating last year’s agreement with Federal Trade Commission not to change its handling of people’s data without their explicit permission.  In fact, the Electronic Privacy Information Center filed a complaint with the FTC insisting Google’s new approach violates the deal.[4]  Perhaps to blunt such criticism, the company shouted out its new privacy regime to broad publics. For several days Google emblazoned its search page and the landing pages of its other holdings with statements such as “We’re changing our privacy policy” followed by blunt signals of seriousness—for example, “This stuff matters” or “Not the same yada yada.”  But if you clicked the link to learn more, you found essentially the same yada yada.  The urgency evaporated.  The language gave no sense that beginning March 1, to quote the Los Angeles Times, “the only way to turn off the data sharing is to quite Google.” [5]  Instead, clickers saw the comforting statement that the change was all good.  The privacy policy would be “a lot shorter and easier to read.” It would reflect “our desire to create one beautifully simple and intuitive experience across Google.”[6]

Google certainly isn’t alone in this purposefully confusing, often two-faced approach to the public.  Consider how Amazon makes it seem that its data mining is transparent with respect to its visitors.  On its landing page the firm is straightforward in letting you know that it is connecting what it previously saw of your site behavior with what others who did similar things bought.  But a trudge through the privacy policy will reveal that Amazon’s seemingly open approach to visitors’ data on the home page actually obscures a far broader and impenetrable use of their data for the company’s own and others’ marketing purposes.  Check out Pandora for a similar pattern of transparency and non-transparency in data-handling.  Or visit the Digital Advertising Alliance’s op-out area and note the disconnect between the availability of the opt-out choice and the rhetoric around it that makes its selection seem slightly absurd.

This sort of doublespeak may be endemic to the approach data-driven marketers are taking to the public.  As Wall Street Journal columnist Al Lewis recently noted, “Mark Zuckerberg says Facebook’s IPO is not about the money. But he then says it’s about creating a liquid market so his employees and investors can get their money—proving the maxim that it’s always about the money.”[7]  Such corporate “explanations” of their activities add yet another reason for the public’s failure to understand the dynamics of big data in their lives.


[1] Chris Jay Hoofnagle, Jennifer Kinng, Su Li, and Joseph Turow, “How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies?”  August 14, 2010.  Report available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1589864&download=yes , accessed February 8, 2012.

[2] Byron Acohido, Scott Martin, and Jon Swartz, “Consumers in the Middle of Google-Facebook Battle,” USA Today, January 26, 2012, http://www.usatoday.com/tech/news/story/2012-01-25/google-facebook-competition/52796502/1, accessed February 8, 2012.

[3] “Google to consolidate privacy data to bolster ad targeting,” New Media Age, January 25, 2012.  Thanks to Jeffrey Chester for pointing out this article to me.

[4] Byron Acohido, Scott Martin, and Jon Swartz, “Consumers in the Middle of Google-Facebook Battle,” USA Today, January 26, 2012, http://www.usatoday.com/tech/news/story/2012-01-25/google-facebook-competition/52796502/1 , accessed February 8, 2012.

[5] Jessica Guynn, “Google to Expand Its Tracking of Users,” Los Angeles Times, January 25, 2012, B1.

[6] “Google Policies & Principles,” http://www.google.com/policies , accessed February 8, 2012.

[7] Al Lewis, “Facebook, Dead of  Alive,” Wall Street Journal, February 5, 2012, http://online.wsj.com/article/SB10001424052970203889904577199481841403756.html?mod=WSJ_hp_mostpop_read , accessed February 8, 2012.

1

The Hidden Dynamics of the Media System

I’m flattered by Concurring Opinions’ request that I contribute to the blog this month. My expertise is not in the Law. It relates to the strategies and dynamics of media industries—particularly the processes at the intersection of marketing, digital media, and society. My aim in these contributions is to show how new, often hidden dynamics in the media system raise crucial issues for people concerned with the growth of an optimal media system for society.

What would such a system look like? I suggest that a good society should have a balance between what might be called society-making and segment-making media. Segment-making media are those that encourage small slices of society to talk to themselves, while society-making media are those that have the potential to get all those segments to talk to each other. So, for example, Latino Perspectives, a magazine for Latinos living in Phoenix and Tucson, may be considered segment-making; the same with the Univision television network. By contrast, People magazine and CBS television, with their interest in broad national audiences, can be called society-making.

A hallmark of the twentieth century was the growth of both types in the United States. A huge number of ad-supported vehicles—mostly newspapers and magazines—served as a way to reinforce, even create identities for an impressive array of segments that advertisers cared about, from groups of immigrants just establishing a presence in the country to the Jay Gatsby-esque luxury market, and more. At the same time, some ad-sponsored newspapers, radio networks and—especially—television networks were able to reach across these groups. For those who hope for a caring society, each level of media had, and continues to have, its problems. Segment-making media have sometimes offered their audiences narrow, prejudiced views of other social segments. Similarly, society-making media have marginalized certain groups, perpetuated stereotypes of many others, and generally presented an ideal vision of the world that reflects the corporate establishment sponsoring them at the expense of the competing visions that define actual publics. Nevertheless, the existence of both forms of media offers the potential for a healthy balance. In the ideal scenario segment-making media strengthen the identities of interest groups while society-making media allow those groups to move out of their parochial scenes to talk with, argue against, and entertain one another. The result is a rich and diverse sense of overarching connectedness: this is what a vibrant society is all about.

What are the core drivers that push the media toward or away from this development? I argue that in the U.S. and many other societies, the answer can be found in relationships between media and advertisers. To understand the key contemporary dynamics, I’ve focused a good deal of my recent research on the critical transformation taking place in the advertising system’s media-buying-and-planning business. The idea behind media buying and planning is basic: An agency helps its clients (the advertisers) decide where to place paid messages about their products. Thirty years ago the U.S. media plan for most national advertisers was a rather straightforward one negotiated by a few people and carried out by rather inexperienced clerks. The realistic possibilities involved the big three broadcast television networks, local radio stations, magazines, newspapers, and outdoor.

But with the rise of cable, satellite, game consoles, DVDs, and a panoply of internet-connected digital devices, media buying and planning has become a byzantine activity. The complexity of deciding how to think about and reach desired audiences has led agencies to a shift in personnel. Statisticians and computer engineers increasingly sit at the center of the process. They formulate complex computer programs, crunch numbers, and even create new advertising buying-and-selling technologies with the aim of identifying and reaching the best prospects in the best places.

The money used to purchase advertising is huge. Media buyers funnel hundreds of billions of dollars (allegedly close to $500 billion) to media firms in exchange for space and time worldwide.1 A substantial portion (one industry consultancy says 88%2) of the spending runs through a small number of organizations owned by a handful of agency conglomerates most people have never heard of: WPP, Omnicom, Publicis, Interpublic, Aegis, and Havas. And that money covers only the formal advertising. Activities such as product placement and “earned media” (an increasingly wide range of public-relations work that may well include coordinating Twitter feeds and Facebook fan pages) raises the total substantially.

Given the amount of cash involved and the fact that advertising provides such a high level of support for so many media industries, the decisions buyers and planners make influence whether media outlets live and how they live—for example, what audiences they should target and how much they can afford to invest in content. The past decade or so has seen the advertising business take a fundamental turn. The emerging media-planning-and-buying system is predicated on neither society-making nor segment-making advertising media channels. Rather, marketing executives along with their engineers and statisticians are building it increasingly around a belief in the primacy of the chosen consumer. The belief motivates them to sort audiences into targets and waste, focus on the individuals they deem valuable, track those people across as many platforms as possible, and serve them personalized ads and other content anywhere they show up.

They are creating a new marketing-and-media world, and the ramifications may well be profound for the individual, for media practitioners and their products, and for society at large. My hope with this month’s posts is that I can elucidate a few of these issues, tie them to current developments, and encourage policy discussions around them. I look forward to your comments.

References
1 See “Worldwide Ad Market Approaches $500 Billion,” eMarketer, June 13, 2011.
2 RECMA, “Global Overall Activity Billings 2010,” http://www.recma.com/files/RECMA_11103_1310117878200_FREE_EXTRACT_-_7_PAGES_-_July_08_A_.pdf , accessed February 1, 2012.

0

The E.U. Data Protection Directive and Robot Chicken

The European Commission released a draft of its revised Data Protection Directive this morning, and Jane Yakowitz has a trenchant critique up at Forbes.com. In addition to the sharp legal analysis, her article has both a Star Wars and Robot Chicken reference, which makes it basically the perfect information law piece…

0

Censorship on the March

Today, you can’t get to The Oatmeal, or Dinosaur Comics, or XKCD, or (less importantly) Wikipedia. The sites have gone dark to protest the Stop Online Piracy Act (SOPA) and the PROTECT IP Act, America’s attempt to censor the Internet to reduce copyright infringement. This is part of a remarkable, distributed, coordinated protest effort, both online and in realspace (I saw my colleague and friend Jonathan Askin headed to protest outside the offices of Senators Charles Schumer and Kirstin Gillibrand). Many of the protesters argue that America is headed in the direction of authoritarian states such as China, Iran, and Bahrain in censoring the Net. The problem, though, is that America is not alone: most Western democracies are censoring the Internet. Britain does it for child pornography. France: hate speech. The EU is debating a proposal to allow “flagging” of objectionable content for ISPs to ban. Australia’s ISPs are engaging in pre-emptive censorship to prevent even worse legislation from passing. India wants Facebook, Google, and other online platforms to remove any content the government finds problematic.

Censorship is on the march, in democracies as well as dictatorships. With this movement we see, finally, the death of the American myth of free speech exceptionalism. We have viewed ourselves as qualitatively different – as defenders of unfettered expression. We are not. Even without SOPA and PROTECT IP, we are seizing domain names, filtering municipal wi-fi, and using funding to leverage colleges and universities to filter P2P. The reasons for American Internet censorship differ from those of France, South Korea, or China. The mechanism of restriction does not. It is time for us to be honest: America, too, censors. I think we can, and should, defend the legitimacy of our restrictions – the fight on-line and in Congress and in the media shows how we differ from China – but we need to stop pretending there is an easy line to be drawn between blocking human rights sites and blocking Rojadirecta or Dajaz1.

Cross-posted at Info/Law.

1

The PII Problem: Privacy and a New Concept of Personally Identifiable Information

My article, The PII Problem: Privacy and a New Concept of Personally Identifiable Information (with Professor Paul Schwartz), is now out in print.   You can download the final published version from SSRN.  Here’s the abstract:

Personally identifiable information (PII) is one of the most central concepts in information privacy regulation. The scope of privacy laws typically turns on whether PII is involved. The basic assumption behind the applicable laws is that if PII is not involved, then there can be no privacy harm. At the same time, there is no uniform definition of PII in information privacy law. Moreover, computer science has shown that in many circumstances non-PII can be linked to individuals, and that de-identified data can be re-identified. PII and non-PII are thus not immutable categories, and there is a risk that information deemed non-PII at one time can be transformed into PII at a later juncture. Due to the malleable nature of what constitutes PII, some commentators have even suggested that PII be abandoned as the mechanism by which to define the boundaries of privacy law.

In this Article, we argue that although the current approaches to PII are flawed, the concept of PII should not be abandoned. We develop a new approach called “PII 2.0,” which accounts for PII’s malleability. Based upon a standard rather than a rule, PII 2.0 utilizes a continuum of risk of identification. PII 2.0 regulates information that relates to either an “identified” or “identifiable” individual, and it establishes different requirements for each category. To illustrate this theory, we use the example of regulating behavioral marketing to adults and children. We show how existing approaches to PII impede the effective regulation of behavioral marketing, and how PII 2.0 would resolve these problems.