ISP Involvement in Behavioral Advertising Getting More Attention

These past two weeks have seen a flurry of activity concerning ISP participation in online behavioral advertising. On July 8, CDT released a legal memo explaining how ISPs partnering with third parties to intercept and use Internet traffic content may violate federal and state wiretapping laws. NebuAd, one such third party, issued both its own legal analysis and a response to CDT’s memo later that day. On July 9, representatives for CDT and NebuAd were among the speakers before the Senate Commerce Committee discussing the "Privacy Implications of Online Advertising." Both CDT’s memo and the Senate hearing garnered much-needed press attention on this worrisome extension of online behavioral advertising practices. CDT’s privacy concerns with such ISP involvement in behavioral advertising are detailed in the testimony of CDT President Leslie Harris. Also on July 9, Richard Blumenthal, the Connecticut Attorney General, released a letter to the Senate Commerce Committee urging federal action to cut off ISP involvement in online behavioral advertising unless there is "prior and explicit consumer approval." Blumenthal called on Congress to strengthen both the Cable Communications Policy Act and the Electronic Communications Privacy Act to "emphatically and effectively ban tracking by Internet service providers and third party marketers." involvement Yesterday (July 15), House Reps. John D. Dingell, Joe Barton, and Edward J. Markey released a letter to Embarq both expressing concern over the ISP’s involvement in online behavioral advertising and seeking answers to nine specific questions regarding Embarq’s trial with NebuAd. The letter notes that the Congressmen are particularly "concerned that Embarq may not have directly notified the subscribers involved in the test that their Web use was being analyzed and profiled." Among other things, the Congressmen asked Embarq to provide details on its trial, describe the notice given to subscribers, explain any analysis conducted as to this business model’s legality, and detail the opt-out procedures available to subscribers during the trial. The letter requests a response from Embarq by July 21. Tomorrow (July 17), the House Subcommittee on Telecommunications and the Internet will continue to press the issue by holding a hearing on "What Your Broadband Provider Knows About Your Web Use: Deep Packet Inspection and Communications Laws and Policies." Alissa Cooper will be testifying on behalf of CDT.