Future imperfect: googling for principles in online behavioral advertising.

AuthorStallworth, Brian
  1. INTRODUCTION II. THE RISE OF GOOGLE A. Obscurity B. Omnipresence C. Overexposure III. ONLINE PRIVACY POLICE: THE FEDERAL TRADE COMMISSION (FTC) A. The FTC Takes Responsibility B. Privacy Policies Substitute for Protection C. Proposed Principles Substitute for Action IV. SOUND AND FURY A. Privacy Policies Provide Inadequate Protection B. Further Revision Equals Further Procrastination V. MINIMUM STANDARDS FOR PRIVACY PROTECTION ARE LONG OVERDUE I. INTRODUCTION

    In a remarkably short time, Google, Inc. has grown from two people working in a rented garage to a pervasive Internet force and an unprecedented economic powerhouse. (1) Although in its infancy, Google's nascent successes already measure in billions of dollars and in thousands of employees. (2) The influence and legacy of this phenomenal growth remain impossible to estimate, as do the risks it may represent to this and subsequent generations.

    Google has become far more than a successful corporation. Bundling a user-friendly system for searching an ever-expanding catalogue of Web pages with Google's lucrative use of consumer information itself as a commodity, Google is now a ubiquitous cultural icon perhaps capable of leading legislators, businesses, and consumers alike. Today, Google satellite imagery is capable of peeking into every backyard in the nation and then posting detailed, zoom-ready photos on the Internet. (3) Roving Google vehicles map our streets and front doors with increasing regularity and resolution. (4) Advertisers worldwide depend on Google to efficiently reach targeted consumers, just as consumers themselves rely on the Internet to identify and locate any information, any business, or any product they desire. (5) Americans swarm to Google services, like YouTube, Google Docs, Google Groups, and many more, apparently unaware of the expanding risks to privacy and security to which they expose themselves every day. (6)

    Consumers adore Google--after all, Google's pantheon of products are offered free of charge to Internet users worldwide. (7) Rather than being eyed with suspicion as the Big Brother of the Internet, Google's popular success has continued, even in the face of challenging economic times. (8) Consumers trust Google because of its innovative disclosure and consumer education techniques that have allowed Google to present itself as a champion of the people and a specimen for new businesses to emulate. (9) Though all of its amazing freebies are subsidized by online advertising sales--Google's primary source of income--few consumers appreciate the extent to which their information is actually being gathered, much less the degree to which it is used to reap enormous profit. (10)

    Although consumer groups, online advertisers, and the Federal Trade Commission (FTC) have asked Congress to enact federal legislation to provide basic protection for online consumer privacy, Congress has thus far chosen not to act. (11) Rather, the FTC has incorporated Internet commerce under its mantle of regulating trade in the protection of consumers. (12) In the online privacy arena, the FTC has investigated fairness violations, brought law enforcement actions, required some Web sites to post privacy policies, and overseen an ongoing dialog with industry and consumer groups. (13) However, the FTC's effort to establish enforceable regulatory privacy standards has been limited by concern for stifling the freedom and prosperity of online commerce. (14)

    After more than a dozen years of considered reflection into online behavioral advertising, the FTC's conciliatory approach has yet to establish those protections, even in principle. (15) In the same span that saw Google's inception and explosive online dominance, the FTC has struggled to define not only the privacy issues involved in online behavioral advertising, but also the practice of behavioral advertising itself. (16) Freed from the restraints of comprehensive federal laws and restrictive federal regulations, Google and its ilk have thrived while taking innovative liberties with the collection and use of consumer information. (17)

    This Note will detail the meteoric rise of Google in Part II, and explore the FTC's adoption of permissive self-regulation in Part III. Part IV will reveal the inadequacies of current consumer protections, while Part V will argue for the establishment of baseline privacy protections for online behavioral advertising.

  2. THE RISE OF GOOGLE

    1. Obscurity

      There was a time, not so long ago, when "Google" was not even a word in the English language. (18) As recently as the mid-1990s, there were only a few close entries: an adjective to describe staring eyes, a cricket term (19) nearly unknown to Americans, and a numerical term (20) useful only to mathematicians and Scrabble players. The word "Google," as we know it, was first coined in 1997 by two ambitious students. (21) Amused by the sound of the word, and drawing comparisons between the lofty number and immeasurable mountains of information lying inaccessible around the globe, the founders of Google turned their college data-searching exercise into what would become one of the world's most profitable and fast-growing businesses. (22)

      Their goal was to organize the world's information and make it available to the public in an easy-to-use, understandable form. (23) Integral to the achievement of this goal, and to the founders' phenomenal success, was to consider the viewer of information as a potential gold mine of information. (24) As Google users browse the Internet, Google simultaneously compiles data about that user; the viewer becomes the viewed. (25) Google's enormous data-crunching machine is able to make calculated assumptions about consumers based on their searches or based on information consumers reveal when registering for any of the free services. (26)

      After gleaning a sense of a user's interests, Google is able to instantaneously direct both search results and advertising targeted to that specific user. (27) These calculations may be based on a single query or could incorporate quantities of data previously gathered about that user. (28) By correlating larger amounts of data, for example, information disclosed in product registration forms, the process becomes more accurate, generating more relevant behavioral advertising. (29) One of Google's many goals is to make online advertising every bit as relevant as search results. (30) Statistically, consumers are far more likely to enjoy--or at least to express interest in--the behavioral advertising Google directs at them. (31) Google's advertising scheme costs less money to reach a more narrowly targeted audience than nonbehavioral advertising, connecting advertisers with an audience statistically more likely to buy those products and services. (32) This, in turn, makes Google all the more attractive to businesses, both large and small. (33)

    2. Omnipresence

      After quickly becoming the nation's dominant Internet search engine, (34) Google's extensive offerings have continued to evolve: e-mail, mapping technology, social networking, news searches and archives, Web browsers and browser toolbars, desktop tools, photo-editing software, video sharing, instant messaging, online shopping, blogs, sharable document formats, online entertainment, mobile phone compatible services and software, language translation tools, and more. (35) Most of these services and products are instantly available free of charge to anyone with Internet access--almost anywhere in the world. (36) In 2009, Google's bold advances included the debut of the DoubleClick Ad Exchange and the announcement of a potential challenger to Microsoft's global operating system dominance, the Google Chrome Operating System. (37) Google is worth billions of dollars, and its searchable database includes over one trillion Web Pages. (38)

      Google employs thousands of workers, (39) its founders are among the wealthiest people on the planet, (40) and it has thrived financially in one of the most challenging economic environments in decades. (41) The list of Google's achievements grows each day as more Internet users come to rely on Google's many products and services and as more businesses of all sizes come to see the ease and cost-effectiveness of using Google's advertising products to reach prospective customers.

      Google has introduced into common vernacular such terms as Google Books, Google Docs, Google Earth, Google Voice, Google Maps, Google Calendar, and Goog-411. (42) Today, the term "google" is not only a standard colloquial term for searching the Internet using Google or even a competitor's search engine, it has also been accepted among major dictionaries as proper English. (43) Google has officially become a noun fit for conversion to a verb, in past and future tenses, (44) and has so infiltrated our language it is even being incorporated into neo-Latin scientific terms. (45) Senior citizens may struggle to use it in a sentence, but today's youth and tomorrow's consumers show few qualms about accepting google into their language, their businesses, and their homes.

    3. Overexposure

      Although millions of Americans appear willing to sacrifice a significant measure of their private information to gain access to Google's ever-increasing armament of products and services, these people may not fully appreciate the risks they are taking. (46) In unknown hands, even the legal use of private information may be surprising and unnerving. (47) In the wrong hands, this information could facilitate identity theft, credit card fraud, cyber-stalking, damaged credit, and more. (48) The digital nature of this data means that it can be distributed across the globe in seconds without leaving a traditional paper trail for investigators or victims to follow. (49) Given the exponential growth of inexpensive data storage, private information could be retained indefinitely--thereby prolonging the risks. (50) While the ultimate costs...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT