The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

Representatives Question Companies Over Behavioral Marketing Practices

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On October 8, 2010, Representatives Barton (R-TX) and Markey (D-MA), co-chairs of the Congressional Privacy Caucus, released information that their Congressional offices had collected regarding specific entities’ online behavioral advertising practices. In August 2010, Representatives Barton and Markey had sent letters to a number of companies requesting information about online behavioral tracking methods. The letters, targeting telecommunications providers, Internet search engines, and social networking sites, such as Yahoo, Comcast, AOL, MSNBC, MySpace, Verizon Wireless,, CareerBuilder, and, asked entities to provide information regarding collection of personal information, relationships with third-party data analytics firms, how collected information is used to provide targeted advertising or marketing to consumers, what factors entities use to track or target consumers, and how specific types of technologies, such as Flash cookies, are used.

In their responses, companies defended behavioral advertising practices, noting that privacy policies explain data collection practices and allow users to opt out of data collection or to receive targeted advertising based on online activity. Further, many companies maintained that behavioral advertising is important to consumers because it allows entities to provide free content that is valuable to consumers. Representative Markey and Barton noted that the responses raise a number of concerns, including whether "consumers are able to effectively shield their personal Internet habits and private information from the prying eyes of online data gathers" and concerns over "complicated and laborious" privacy policies that are hard for consumers to understand. The entities’ responses are available on Representative Markey’s congressional website.

In the past year, Congress has focused heavily on personal information privacy practices, including holding numerous hearings to discuss privacy practices and legislation. Privacy legislation has been introduced in both the House or Representatives and the Senate. Pending bills include S. 3742, recently introduced by Senators Pryor (D-AR) and Rockefeller (D-WV); H.R. 5777, introduced by Representative Rush (D-IL); and H.R. 2221, which passed the House in December 2009. Provisions of these bills focus on security standards for personal information, data accuracy, and, in some instances, information collection, sharing, and use practices.


Author: ABA Antitrust

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