Behavioral Advertising: The Offer You Cannot Refuse
Chris Jay Hoofnagle
University of California, Berkeley - School of Law, Berkeley Center for Law & Technology; School of Information
University of California, Berkeley - School of Information
Dietrich James Wambach
University of Wyoming
Worcester Polytechnic Institute (WPI)
August 28, 2012
6 Harvard Law & Policy Review 273 (2012)
UC Berkeley Public Law Research Paper No. 2137601
At UC Berkeley, we are informing political debates surrounding online privacy through empirical study of website behaviors. In 2009 and 2011, we surveyed top websites to determine how they were tracking consumers. We found that advertisers were using persistent tracking technologies that were relatively unknown to consumers. Two years later, we found that the number of tracking cookies expanded dramatically and that advertisers had developed new, previously unobserved tracking mechanisms that users cannot avoid even with the strongest privacy settings.
These empirical observations are valuable for the political debate surrounding online privacy because they inform the framing and assumptions surrounding the merits of privacy law.
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. We argue that the combination of disguised tracking technologies, choice-invalidating techniques, and models to trick the consumers into revealing data suggests that advertisers do not see individuals as autonomous beings. Once conceived of as objects, preferences no longer matter and can be routed around with tricks and technology.
In the political debate, “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. Advertisers are so invested in the idea of a personalized web that they do not think consumers are competent to decide to reject it. We argue that policymakers should fully appreciate the idea that consumer privacy interventions can enable choice, while the alternative, pure marketplace approaches can deny consumers opportunities to exercise autonomy.
Number of Pages in PDF File: 24
Keywords: Privacy, tracking, flash, cookies, local stored objects, usability, online advertising, behavioral targeting, self-help
JEL Classification: D18
Date posted: August 30, 2012
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