• by Wendy Davis , Staff Writer @wendyndavis, April 14, 2008

It puts civil libertarians in a difficult position, but the fact is privacy rights and freedom of speech often end up colliding with each other.

Newspapers print pictures of people who don't want their photo shown, political campaigners ring people's doorbells seeking votes, and Web sites post the purchase price of home sales. Generally, these activities are permissible in the U.S., because First Amendment freedom of speech principles outweigh whatever privacy interest people think is being compromised.

On the other hand, courts have also upheld restrictions on speech -- especially ads, considered "commercial speech" -- in the name of protecting people from intrusion. Consider the do-not-call list. The Federal Trade Commisson had to defend the registry against a First Amendment challenge in federal court and, at one point, was banned from creating the registry. Ultimately, the 10th Circuit decided that the agency could go forward with the registry, but this outcome wasn't certain when the case first began.

Now, this clash is coming up again with behavioral targeting -- serving ads to people based on their Web-surfing history. The Newspaper Association of America late last week filed comments with the FTC arguing that any rules impeding newspapers' ability to serve ads to readers would violate newspapers' First Amendment rights.

Courts have long said that the ability to advertise is a First Amendment right, but there's obviously far less precedent about whether serving ads based on people's Web-surfing history violates other rights. Privacy advocates are calling for limits, saying that at a minimum, companies shouldn't deploy behavioral targeting without consumers' consent -- with some advocates arguing that consumers should explicitly consent via opt-ins.

Much of the legal restrictions might end up turning on whether people have a reasonable expectation that their Web history is, or should be, confidential. On one hand, everyone who stops and thinks about it must surely know that all clicks leave a digital trail. At the same time, many users simply can't fathom that anyone else -- ISPs, ad networks, etc. -- actually collects that information, much less analyzes it and then sends ads based on it.

Of course, one way Web companies can help insure people know that clickstream data is being collected is by posting clear, easy-to-read privacy policies. And, under the circumstances, asking people to consent to behavioral targeting, either by opting in or not opting out, doesn't seem like the kind of restriction that would necessarily violate the First Amendment.