TO: Federal Trade Commission and Department of
Concerning: On-line Profiling
December 6, 1999
The Commission should determine whether on-line profiling, as it was described at its workshop, is inherently deceptive and/or an unfair trade practices. If it is, the Commission staff should develop enforcement cases against the potential offenders.
There is ample precedent for this. The U.S. Supreme Court determined in 1995 that target advertising aimed as vulnerable populations is an invasion of privacy and that such advertising can be reasonably regulated. A syllabus of Florida Bar v. Went For It, 515 U.S. 618 is at http://supct.law.cornell.edu/test/hermes/94-226.ZS.html.
My reference is to Justice O'Connor's language in her majority opinion, "After scouring the record, we are satisfied that the ban on direct mail solicitation in the immediate aftermath of accidents. . . targets a concrete, non speculative harm."
"The Florida Bar has argued, and the record reflects, that a principal purpose of the ban is "protecting the personal privacy and tranquillity of [Florida's] citizens from crass commercial intrusion by attorneys upon their personal grief in times of trauma. . . . The harm targeted by the Florida Bar cannot be eliminated by a brief journey to the trash can."
The Commission must determine whether the same is true of manipulative on-line profiling, especially when it affects vulnerable populations like the elderly, the young, the disabled, and the indigent.
Once again, there is precedent for such a finding. In 1974, the Federal Communications Commission issued a rule that the projection of subliminal images over television is contrary to the public interest. 39 Federal Register 3714, January 29, 1974. See also AP story Feb. 12, 1974. The FCC regulates on-air broadcasting. The advisory was prompted by an ad campaign that quickly flashed "Get It" on the TV screen during a toy ad. The FTC, which regulates deceptive advertising and unfair competition, issued a document in 1974 saying that subliminal messages on highway billboards may be unfair and deceptive, and said that they should not be used. At the time, these two advisories were apparently enough to deter such advertising. The FTC said that viewing a billboard from a car at 60 miles an hour is similar to viewing subliminal images on a screen.
A subliminal message is defined as an appeal to take some action that the consumer cannot see with the naked eye or comprehend with the conscious mind. Many psychologists say that this kind of messaging does not work. (Still lots of employers use this technique in software that subliminally tells employees, "Work harder.")
Family Health magazine, December 1978, reported, "Back in 1957, a company called Subliminal Projection offered a gadget that projected a piece of popcorn and a soft drink on movie screens once every five seconds, for one three-thousandth of a second at a time, during the showing of a movie in a commercial theater. The idea was that viewers would get so hungry and thirsty that they would suddenly rise from their seats, mysteriously driven to the candy counter to buy goods."
The commission should search its own precedents and discover that it has previously advised against advertising that is effectively identical to the kind of on-line profiling now at issue.
The press and the public and the regulators are going to be demanding "horror stories" - "where's the harm?" We should be clear that this is experimental marketing, in its infancy; it's too early to see actual horror stories. In 1974, the FCC and FTC acted before there were horror stories, because the technique described was deceptive on its face.
Still, there are real dangers, many of which were listed in testimony prepared for the workshop by the Center for Democracy and Technology. I was prepared to offer a list of abusive scenarios as well. In each case, the FTC and Department of Commerce staff showed no interest in hearing this kind of testimony. There was no opportunity for anybody presenting the case for privacy to make a presentation, nor even a sustained comment. It is not possible to have an objective study of this issue without knowing the legal precedents and the accepted principles of privacy protection. Any honest attempt to study this matter must include a full airing of privacy principles and case law, as well as FTC regulatory precedents. The workshop organizers chose to exclude this essential material from their workshop.
Not surprisingly, at the end of the morning session, the moderator was able to call on one witness to dutifully ask, "So what? I haven't heard any real dangers here." Life in Washington.
In my 25 years of appearing at Executive Branch forums and Congressional hearings, this was the most rigged session I have encountered. The Department of Commerce perhaps is an appropriate place for corporate show-and-tell presentations, but a regulatory agency is not.
On-line profiling is particularly ominous in view of the Congressional passage of the financial-modernization legislation during the same month as the workshop. It gives virtually unfettered opportunity to banks, brokerages, and insurance companies to release personal financial information on its customers. While much of the debate focused on release of customer information among affiliated companies - which under the bill just enacted is unlimited - the loopholes permitting release to UNAFFILIATED companies are so permissive as to make it impossible for customers to prevent this. While the privacy language in the bill will lead many Americans to believe that this bill will protect privacy, the extreme opposite is the case. There was evidence at the workshop that institutions collecting financial information use on-line profiling to collect it * or plan to do so.
As it inquires into in-line profiling as a deceptive and/or unfair practice, the commission should also alert consumers to this phenomenon, and advise them about turning off cookies in their PCs and staying away from commercial web sites until privacy protections are in place. At least it is established FTC policy that commercial web sites should not be collecting consumer information without meaningful privacy policies/ The Commission to make that clear to American consumers.
More than the disclosure of consumer information (a breach of confidentiality) is at stake here. As Jeff Chester pointed out in his brief opportunities at the workshop, on-line profiling permits covert commercial manipulation of individuals, including children and the elderly. This sublime behavior manipulation results in A LOSS OF AUTONOMY. A loss of autonomy is a loss of privacy. Courts have recognized for years that privacy includes not only control of one's personal information, but also control of one's body and one's life - personal autonomy. Some courts have called this autonomy "a right of personhood." Planned Parenthood of Southeastern Pennsylvania et al v. Casey, 505 U.S. 833 (1992). The Commission must not regard the right to privacy as limited to a breach of confidentiality. It is much more than that, and it includes the right of autonomy, the right against manipulation of one's "personhood."