There’s Nothing Inevitable About Apps That Track Your Every Move

The New York Times on Monday ran an extensive article on how the locations of millions of American are being tracked by apps on their cell phones, bought and sold, and used for advertising and other commercial purposes.

Is your location data among them? Do you know for sure? Every time you visit a doctor, bar, Planned Parenthood clinic, or friend’s house, is some company storing the when, where, and with whom?

I was recently speaking about privacy before an audience of government officials who had just received a pitch from one of these location data companies. I asked everybody in the audience to put up their hands unless they were positive that data from their phone was not being collected. Nearly every hand went up. I then asked people to raise their hands if they had consciously given permission for such tracking. Almost every hand went down.

That is the problem. Worse, if companies are collecting and warehousing these mountains of data, the government could get access to it as well.

The Times story, appropriately headlined “Your Apps Know Where You Were Last Night,” featured one woman whose location trails, collected by apps on her phone without her knowledge, showed her traveling between her home and the school where she teaches. They also showed her visiting a Weight Watchers center, a doctor, and her ex-boyfriend’s home. Another location record accessed by the Times tracked someone from a home outside Newark to a Planned Parenthood clinic.

The current state of our privacy is unacceptable. As new technologies make ever more intimate levels of tracking feasible, companies are competing to exploit them as quickly as possible, with the only limits being what can be done, and inadequate examination of what should be done. As a result, American consumers are subject to a level of monitoring that has never before been experienced in the history of humanity — tracking that is more extensive than many understand and more intrusive than most are comfortable with.

The heart of the problem with tracking apps and the rest of our corrupted privacy regime is that it has been built around the concept of “notice and consent”: As long as a company includes a description of what it is doing somewhere in an arcane, lengthy, fine-print click-through “agreement,” and the consumer “agrees” — which they must do to utilize a service — then the company can argue that it has met its privacy obligations.

Our ecosystem of widespread privacy invasions has been allowed to fester based on the impossible legal fiction that consumers read and understand such agreements. The reality is that many consumers can’t possibly understand how their data is being used and abused, and they don’t have meaningful control when forced to choose between agreeing to turn over their data or not using a particular service.

Worse, technologists and academics have found that advertising companies “innovate” by altering their tracking technologies specifically to resist consumers’ attempts to defeat that tracking. This is done, for example, by using multiple identifiers that replicate each other, virus-like, when users attempt to delete them. Advertisers, the experts conclude, “use new, relatively unknown technologies to track people, specifically because consumers have not heard of these techniques. Furthermore, these technologies obviate choice mechanisms that consumers exercise.”

In short, not only is there no meaningful way for consumers to control how and when they are monitored online, companies are actively working to defeat consumer efforts to resist that monitoring. Currently, individuals who want privacy must attempt to win a technological arms race with the multi-billion dollar internet-advertising industry.

American consumers are not content with this state of affairs. Numerous polls show that the current system makes people profoundly uncomfortable.

What’s needed is privacy legislation that includes a meaningful “opt-in” baseline rule for the collection of any information. By “meaningful,” we mean, among other things, that care be taken not to allow it to degenerate back into the current “notice and consent” regime where consumers are forced to “agree” to arcane agreements that they cannot understand.

The advertising industry shouts that such protections for American consumers will “ruin the free internet.” But there is absolutely no reason that needs to be the case.

An ad-supported ecosystem of services can flourish without collecting massive quantities of data about individuals in secret and without their consent. Broadcast television stations were an extremely lucrative business throughout the second half of the 20th century, yet broadcasters were never privy to the intimate details of their audience members’ individual viewing habits. Insofar as television ads were targetable at all, it was not through “behavioral” targeting, but instead through good old-fashioned “contextual” targeting, in which ads are matched to the audiences that different shows attract. This is an effective means of targeting ads online, and one that is perfectly consistent with strong privacy protections. An advertiser that wants to reach golfers, for example, can place its ads on a site about golf or on pages returning the results for golf-related search terms.

Where ad-based services have been built upon ethically problematic, non-consensual monitoring of individuals’ private lives, that monitoring should be rolled back, just as the telemarketing industry was rolled back by the “do not call” registry. This has not stopped progress or innovation in healthier areas that benefit consumers more.

If we protect privacy and constrain behavioral advertising, ad budgets will not dry up, and ad-supported offerings will not wither away. Nor will innovation in online and offline services simply cease because the advertising industry has been proscribed from taking behavioral advertising to the next, even more intrusive, level.

These companies are exploiting the inevitable lag between the moment when people’s privacy has been stolen by technology and when they realize that it’s been stolen. But in the end, those gaps will close because people demand privacy. Strong privacy protections that block the kind of things reported on by The Times are entirely compatible with a robust and flourishing economy, online and off.

In fact, such protections will establish predictability and stability of expectations that will enhance consumer confidence, prosperity, and innovation.

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Actually, many companies DO collect behavioural analytics about television. These can show simple things, like when certain households switch to or away from a channel (such as during ads), but they can also go deeper. I have a close relative who works in TV advertising analytics, and these companies can even tell what cars certain households have, how many people live there, what their occupations are, etc. However, the big difference is that consumers can generally opt in or opt out of the more personal information WITHOUT HAVING TO GIVE UP THE SERVICE! Things like ratings (what people watch, when, where, and for how long) can't really be opted out of, but they also tell you almost nothing about the people watching the show. The personal data tied to more precise behavioural ad targetting is, additionally, almost always opt-in, NOT opt-out. Sometimes the companies offer a discount in exchange, but the key factor is that you aren't forced to give up your very personal data to use the service. That precise, personal, behavioural data also tends to be where the real money is, outside of the Super Bowl or the Olympics or other huge, thought-to-be-universal programs. But, as I keep emphasizing, it is opt-in, never mandatory and practically never opt-out. That would be best for the internet, I believe.

AnonymouS

I wonder sometimes how accurate TV advertising analytics are. For instance, in my small world I literally detest the drug commercials that use many of the same tactics as the tobacco industry used years ago: cartoons to suggest it's safe, highly suggestive commentary that you have the disease, happy exchanges of people (children playing) after having taken the new drug, popular songs in the background to make it feel comfortable, and of course that litany of side-effects as a result of taking it -- plus "ask your doctor for a prescription," which is the final-ask to close the deal. EVERY TIME one of these commercials comes on I change the channel, and usually don't come back to the station for a while.

If TV analytics is paying attention, all the news broadcasts use them (the drug commercials), many of the programs for older demographics use them, and several stations that show movies or several episodes of the same show use these commercials. I always change the channel when highly suggestive drug commercials come on, avoiding the mind-programming of their fancy attempts to sell their pharmaceutical wares.

Craig

I suspect this is being done so that the government could later claim that people do not have a reasonable expectation of privacy as to the contents of their personal data on their cellphones. This allows them to break apart the 4th amendment, then.

Anonymous

Would love to read an article by Jay Stanley that exlores how Brexit and the European Union resolution could affect privacy and civil liberties. May be more important than most Americans realize. The United States no longer protects individual liberties and in recent years, the European Union has actually had more integrity in protecting Americans' Bill of Rights than the American courts and Congress. The United States no longer leads on protecting individual liberties or defending human rights and will Brexit help or harm those nations that are leading on this issue?

Anonymous

Businesses and corporations should be able to represent their vantage points to lawmakers but shouldn't monopolize the Campaign Finance System either. The campaign finance system is simply out of balance and this weakness plays a major factor in this issue. If regular Americans (human-citizens) were better represented - with equal First Amendment rights - as "corporate-citizens" have, lawmakers would have provided more safeguards for consumers and citizens. This "Citizens United" legaleze was not invented by liberals but by conservatives. "We the People" need representation in Congress and state legislatures also!

Anonymous

I guess you don't believe that the almighty dollar, has voting rights and deserves freedom of speech. Would you disenfranchise money then? Remember, the dollar says "In God We Trust," so that might disenfranchise God for some people.

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