Newspapers gone wild – Behavioral targeting protected by first amendment

Saul Hansell (via his NYT Bits blog) brought my attention to the fact that the Newspaper Association of America joined (PDF) the slew of parties commenting publicly on the FTCs “Online Behavioral Advertising Privacy Principles” (Longer PDF Version).

I’m pretty sure that they added a new twist in the discussion by argumenting that behavioral targeting is protected by the first amendment:

Efforts to restrict or limit what newspaper websites publish, and the basis by which editors and advertisers make decisions regarding what to publish, run directly counter to core First Amendment rights, and can amount to a form of prior restraint.

In order to be able to make their argument they also promote advertising from errr: “advertising” to “advertising content”:

For these online editions to remain “free,” market segmentation and advertising
customization will likely prove inevitable. It will likely prove a practical necessity for
newspapers to target users for both editorial and advertising content to recover the costs
of providing such customization and segmentation. The technology to do that potentially
is at risk in this proceeding.


Any effort by government regulators to restrict how content—whether editorial or
advertising—is selected for delivery to readers online or on newsprint faces profound
constitutional hurdles.

Furthermore, IMHO they are practicing disinformation when drawing the following dire scenario:

Allowing users to have what amounts to an operational veto over such emerging
models would be poor policy, would impair the ability of publishers to defray the high
costs of creating “free” content, and would deter business innovation. The consumer
always has the right to avoid “unwanted” tracking by choosing not to use a website
altogether. Correspondingly, a website (especially one dependent upon advertising
revenue to support free content) has the legal right to refuse deeper access to users who
do not wish to be “tracked,” just as many websites today condition deeper access on the
user consenting to provide registration and other data. There is no precedent for giving a
website visitor a right to dictate the terms on which he or she will use a website.

This scenario is nowhere near the proposed principles. They “expressis verbis” state that a refusal of tracking might result in reduced access to information:

To address the need for greater transparency and consumer control regarding privacy issues raised by behavioral advertising, the FTC staff proposes:

  • Every Web site where data is collected for behavioral advertising should provide a clear, consumer-friendly, and prominent statement that data is being collected to provide ads targeted to the consumer and give consumers the ability to choose whether or not to have their information collected for such purpose.

To address the concern that data collected for behavioral advertising may find its way into the hands of criminals or other wrongdoers, and concerns about the length of time companies are retaining consumer data, the FTC staff proposes:

  • Any company that collects or stores consumer data for behavioral advertising should provide reasonable security for that data and should retain data only as long as is necessary to fulfill a legitimate business or law enforcement need.

To address the concern that companies may not keep their privacy promises when they change their privacy policies, FTC staff proposes:

  • Companies should obtain affirmative express consent from affected consumers before using data in a manner materially different from promises the company made when it collected the data.

To address the concern that sensitive data – medical information or children’s activities online, for example – may be used in behavioral advertising, FTC staff proposes:

  • Companies should only collect sensitive data for behavioral advertising if they obtain affirmative express consent from the consumer to receive such advertising.
  • FTC staff also seeks comment on what constitutes “sensitive data” and whether the use of sensitive data should be prohibited, rather than subject to consumer choice.

The staff is seeking additional information about whether tracking data is being used for purposes other than behavioral advertising and whether such secondary uses, if they occur, merit some form of heightened protection.

Because online advertising supports free Web content and other benefits, the choice by consumers not to participate in behavioral advertising could reduce the availability of these benefits. The FTC is seeking comments from all interested parties on the proposed principles, including the costs and benefits of offering choice for behavioral advertising. Comments can be sent to BehavioralMarketingPrinciples@ftc.gov.

In summary, the NAA’s comment is another sign that the newspapers are getting more and more desperate. IMHo, instead of focussing on how to build on their core asset: trust in the digital age, they are selling it. No wonder that ever more journalists are pessimistic about the ability of the newspaper to master the move from print to online.

Further reading