• by Wendy Davis  @wendyndavis, April 14, 2008

Adding its voice to the debate about behavioral targeting, the Newspaper Association of America filed comments with the Federal Trade Commission on Friday arguing that its proposed privacy standards could infringe on newspapers' First Amendment rights.

"The agency has ignored significant constitutional issues raised by the proposed behavioral targeting principles," the group stated in its comments.

The newspaper association argues that ads are a form of speech, and that it has the right to serve them, provided that they are not misleading. Ads displayed to readers based on their online behavior are "not only truthful advertising speech, but advertising speech that meets their interest," the group wrote in its filing.

The Newspaper Association of America was one of dozens of groups to weigh in on the FTC's proposed voluntary behavioral advertising standards. The agency issued the guidelines late last year, several weeks after holding a two-day town hall meeting about privacy and online advertising.

The FTC held the meeting one year after the Center for Digital Democracy and U.S. Public Interest Research Group helped launch a discussion about behavioral targeting and privacy by filing a complaint seeking a probe of behavioral targeting. Google's merger with DoubleClick also fueled the privacy debates that resulted in the FTC's proposals.

The FTC guidelines generally call for companies to allow consumers to opt-out of behavioral advertising, defined by the agency as "the tracking of a consumer's activities online--including the searches the consumer has conducted, the Web pages visited, and the content viewed--in order to deliver advertising targeted to the individual consumer's interests."

The agency also proposes that companies obtain users' express consent before using "sensitive" data, including information about health conditions or sexual orientation, for targeted ads.

Since the FTC released its proposals late last year, a wide swath of marketing organizations, publishers and consumer advocates have taken positions on whether the government should become more involved in regulating the area. Individual Web companies--including AOL, Yahoo, Microsoft and Google--have submitted comments, all stating their preference for continued voluntary self-regulation.

Associations like the American Advertising Federation, American Association of Advertising Agencies, Association of National Advertisers, Interactive Advertising Bureau, Magazine Publishers of America and Online Publishers Association also oppose any government regulations, arguing that limits on behavioral targeting could hurt online marketers and publishers.

"We are hopeful that the commission will continue to allow this to be an industry that's self-regulated," said Pam Horan, president of the OPA. "If there were overbroad regulations placed on companies that are providing content for free, there would be a significant impact."

Currently, many ad networks belong to the Network Advertising Initiative, which already requires members to let consumers opt-out of behavioral targeting. That organization last week revised its policies to ban the behavioral targeting of children under age 13 and also require that consumers opt-in to behavioral targeting for medical or financial matters.

Consumer advocates, meanwhile, have continued to press for laws that would enshrine privacy protections. The Center for Digital Democracy and the U.S. Public Interest Research Group Friday reiterated their call for regulations requiring companies to obtain users' affirmative consent before monitoring them online and serving them ads. Those groups also urged new regulations regarding behavioral targeting of users under age 18 and behavioral targeting related to medical or financial information.

Also on Friday, Sen. Edward Markey (D-Mass.) issued a statement in support of stronger limits on behavioral targeting of children. "Without stronger protections, including a prohibition on collecting data on children's and teens' online activities, young Internet users may become unwitting targets of the 'hidden persuaders' of the digital age," he stated.

Many behavioral targeting platforms collect data anonymously, but privacy advocates find such programs troubling for several reasons. For one thing, some marketers can potentially combine the supposedly anonymous clickstream data with other, personally identifiable information, like names or e-mail addresses. In addition, advocates argue that clickstream data alone--especially comprehensive data such as that collected by Internet service providers--can provide clues to people's identities.

Furthermore, some consumer advocates argue that behavioral targeting techniques potentially manipulate consumers in a way they are not aware of. In its filing Friday, the Center for Digital Democracy and U.S. Public Interest Research Group argued that marketers have an obligation to ensure that consumers are "meaningfully informed about the issues." Consumers, they say, "should understand that they are the subjects of evolving and sophisticated targeting platforms."

The newspaper group is one of the only organizations to comprehensively tackle First Amendment issues in its filing. In addition to arguing that regulations could affect its right to show ads, the group also said that online privacy regulations could ultimately have an impact on its efforts to personalize content for readers.

"Efforts to restrict 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 prior restraint," the group argued in its comments.