The Surveillance Age: How New Technology Promises to Complicate the Relationship between Advertisers, Private Persons, and the Law

The Surveillance Age: How New Technology Promises to Complicate the Relationship between Advertisers, Private Persons, and the Law

 I would expect that most people do not consider their favorite restaurants, clothing brands, or television shows to be among their most closely guarded secrets. However, are most people comfortable with advertisers constantly attempting to learn all these things about them through increasingly advanced technologies and, more likely than not, without the knowledge that they are doing so?

Targeting advertising is hardly a new phenomenon, but the typical conception of this particular method of marketing has been confined to online environments experienced through a web browser. Furthermore, some of the largest collectors of data, Google being the most recognizable example, do disclose that they collect behavioral data and employ said data in order to target relevant ads towards their users.[i] It is quite likely that if you have an email account with a service provider like Google, you have been informed when they update their privacy policies. It is no secret that Google collects information from users of its email services and of its search engine to target advertising at potential consumers.[ii] Google’s privacy policies explicitly state that they do collect information in order to provide for targeted advertising.[iii] But they also note that users can control their advertising settings, which actually does include opting out of interest based advertising. [iv] To some limited extent, the online user has a degree of control over what information is gathered and how it is employed.

But what happens when targeted advertising is no longer confined to one’s computer screen and becomes just as pervasive in the real, offline world? A recent web article from the BBC looked at some of the technologies that promise to make this aforementioned possibility into reality.[v] Titled “Targeted real-life adverts ‘know who you are’,” the article discussed face recognition systems, electronic frequency emitters that can cause ads appear on cell phones through applications, and chips built into store loyalty cards that could cause targeted ads to appear on screens within stores.[vi] The idea of continuous electronic surveillance is usually associated with government intelligence agencies and shadowy programs designed to aid in law enforcement and counter-terrorism. But these technologies are not to be employed by government agencies for national security or border control, already intensely controversial applications, but instead to monitor the buying patterns of the mass market.

While this form of offline targeted advertising is inexorably linked to the culture of online targeted advertising, there seems to be a looming issue: How do people that do not want to be monitored, analyzed, and statistically calculated to purchase something opt out of surveillance by these systems? More broadly, how do we balance privacy versus commerce in these situations? At least online, the user has the capacity to seek out privacy policies, given that they are easily accessible, and can verify what their rights are when they visit the webpage. In some cases, such as with the above Google example, they can opt out of being monitored. But is this option even available when we are talking about personal information being gathered, possibly without the knowledge of the consumer, by camera surveillance or through mediums built into phones, plastic cards, or other effects one would just normally carry with them?

The proper regulation of private surveillance in the name of capitalism appears poised to become a sticky issue. Constant surveillance is not a particularly pretty concept, even if it is just being used to create more relevant advertising and I would not be tremendously surprised if controversy around the prospect of offline behavioral advertising flares up to the point where U.S. federal legislators decide to act. While the United States Government already has privacy protections in place regarding disclosure of financial information (Gramm-Leach-Bliley Act), medical records (HIPAA), communications interception (Federal Wiretap Act), and government data collection (Privacy Act of 1974), private data collection in the forms previously described seemingly falls outside of most current federal protections.  It should be noted that self-regulation steps have been taken within by industry leaders, as evinced by the publication and creation of privacy policies, but can those policies be enforced such to prevent breaches? Lawsuits for privacy policy law violations are not unheard of, but if they based on state laws, then there problems related to said privacy laws not being uniform across the nation, as well as the ugly issue of possible federal preemption by other trade and business laws – as is what happened when California attempted to sue Delta Airlines for violation of the state’s Online Privacy Protection Act.[vii]

An almost funny notion can be extrapolated from the development of these technologies to monitor consumer preferences: Advertisers would love to know everything about you – they just don’t want have to get to know you in person. A cute quip, but it might sum up the concerns that some possess regarding the gathering of personal information. We will have to see if these concerns lead to new laws regulating these business practices.

 


[i] Policies and Principles: Advertising, Google, (June 24, 2013) http://www.google.com/policies/technologies/ads/

[ii] Id.

[iii] Id.

[iv] Id.

[v]Alex Hudson, Targeted real-life adverts ‘know who you are’, BBC News, (July 29, 2013) http://www.bbc.co.uk/news/technology-23425297

[vi] Id.

[vii] Karen Gullo, Lawsuit against Delta’s mobile app privacy violations dismissed, Skift: Travel IQ, (May 14, 2013, 4:16 AM), http://skift.com/2013/05/14/lawsuit-against-deltas-mobile-app-privacy-violations-dismissed/

Image: Face-recognition screen, BBC News, (July 29, 2013), http://www.bbc.co.uk/news/technology-23425297