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Doesn’t the Ad Industry Trust the Free Market?

Jay Stanley,
Senior Policy Analyst,
ACLU Speech, Privacy, and Technology Project
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October 12, 2012

The advertising industry continues to mount a strong attack on the Do Not Track concept for protecting online privacy. As my colleague Chris Calabrese described last week, the industry threw an “epic hissy fit” (in the words of Ed Bott at ZDNet) over Microsoft’s laudable decision to turn on Do Not Track by default in Internet Explorer.

Now the industry is going even more strongly on the offensive against Do Not Track. As Bott describes, an ad industry representative in the WC3 standards-setting group for Do Not Track tried to propose that “Marketing should be added to the list of ‘Permitted Uses for Third Parties and Service Providers.’” In short, the representative wanted the WC3 create an exception to their rules that renders the entire effort utterly meaningless. Of course, that is exactly what the online ad industry would like—they previously proposed that Do Not Track be defined to mean not that companies couldn’t track consumers, just that they would not serve them ads that reveal that tracking.

In response to pushback over this latest proposal, the industry representative issued this ringing defense of marketing:

Marketing fuels the world. It is as American as apple pie and delivers relevant advertising to consumers about products they will be interested at a time they are interested. DNT should permit it as one of the most important values of civil society. Its byproduct also furthers democracy, free speech, and – most importantly in these times – JOBS. It is as critical to society – and the economy – as fraud prevention and IP protection and should be treated the same way.

To understand at a glance what is wrong with that statement, simply replace the first word, “Marketing,” with “Spying on consumers’ internet activity” and read it again. But let’s break it down further:

  1. Obviously companies need to communicate about their products and services. That’s what marketing is, and it is socially valuable.
  2. And of course, the more accurately companies can target those communications, the more efficient it will be for them.
  3. But it does not follow from those two facts that allowing companies to engage in ever-more-intrusive commercial spying is socially valuable. There’s marketing, and there’s spying to target marketing. I may be secretly suffering from Disease X, but that does not mean it is in my interest to allow advertising companies to spy on my web surfing, and intrude on my personal life, in order to glean that fact (as well as many others) and send me advertisements for Disease X treatments.

The above statement also raises another question: if spying is such a glorious, valuable activity, which will bring so many benefits to so many people, then why is the advertising industry worried? Won’t people naturally gravitate toward something that brings them benefits? Won’t they turn off Do Not Track—even if Microsoft turns it on by default? Doesn’t the ad industry believe in the free market?

Of course the answer is that people do not benefit from being spied upon, and neither does society as a whole from allowing it. Just this week, yet another study has been released showing that consumers by wide margins do not want to be tracked online (here is the study, and New York Times coverage of it).

I suppose a tracking supporter could argue that people simply do not recognize their own self-interest—that they are victims of some ironic form of false consciousness, or that untrammeled commercial spying produces larger, aggregate benefits for society even if people don’t like it, and therefore that people should not be given control over who observes their online activities.

Certainly, there is no guarantee that aggregations of individuals’ decisions on a micro level—aka free markets—will produce the public good on a macro level. But here we’re not talking about consumers’ decisions about paper or plastic, Coke or Pepsi, Wal-Mart or the shop in the old downtown. We’re talking about decisions that are close to the core of human freedom, psychological well-being, and democratic society—the decision to seek privacy. People want that privacy, and they deserve to have it.