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Online Tracking and Consumer “Choice”

Jay Stanley,
Senior Policy Analyst,
ACLU Speech, Privacy, and Technology Project
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August 30, 2012

A group of privacy researchers (including some responsible for the excellent privacy studies done by the Berkeley Center for Law and Technology) have an interesting paper out this week in the Harvard Law & Policy Review on behavioral advertising. In the paper, the authors (Chris Jay Hoofnagle, Ashkan Soltani, Nathaniel Good, Dietrich J. Wambach, and Mika D. Ayenson) argue against the idea that privacy-protecting regulations somehow take choice away from consumers who are grown-up enough to fend for themselves. Such arguments are currently being thrown around in an attempt to forestall Do Not Track from being implemented (as I discussed here).

Comparing online tracking to telemarketing, the paper explains how tracking technologies are being built to resist users’ attempts to defeat them—for example by using multiple identifiers that reinstate each other, virus-like, when users attempt to delete them. Advertisers, the authors conclude based on their research and that of others, “are willing to use technology to circumvent settings on individuals’ computers.” They write,

Our work demonstrates that advertisers 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….

“Paternalism” is a frequently invoked objection to privacy rules. Our work inverts the assumption that privacy interventions are paternalistic while market approaches promote freedom. We empirically demonstrate that advertisers are making it impossible to avoid online tracking.

The authors measured mainstream tracking practices by looking at the behavior of the top 100 web sites. Among their findings:

• They detected 5,675 standard cookies placed by those 100 sites, up from the 3,602 found in 2009.
• Of those, they found that 87% were placed by a third party, not the web site that the user was actually visiting and knowingly interacting with.
• Google had cookies on 97 of the top 100 web sites and thus was in a position to track behavior across all those sites.
• Seventeen of the top 100 were found to be using the new tracking technology HTML5 local storage, which can store far more information about a web user than standard cookies (and can also be used to help resist the deletion of tracking cookies).

The paper is a good primer on some current tracking technologies. But it is also persuasive in showing that what’s robbing consumers of “choice” in the real world are “free market” tracking practices, not privacy protections that might interfere with the desires of those theoretical consumers who are dying for their every move to be chronicled by advertisers. Ultimately, it demonstrates the absurdity of the position that individuals who desire privacy must attempt to win a technological arms race with the multi-billion dollar internet-advertising industry.