Rebecca Hollander-blumoff, Crime, Punishment, and the Psychology of Self-control Elspeth A. Brotherton, Big Brother Gets a Makeover: Behavioral Targeting and the Third-party Doctrine

• Citation: Vol. 61 No. 3
• Publication year: 2012

BIG BROTHER GETS A MAKEOVER: BEHAVIORAL TARGETING AND THE THIRD-PARTY DOCTRINE

ABSTRACT

A staggering 239 million Americans have access to the Internet and spend, on average, sixty hours each month online, visiting some 2646 websites. What few Internet users realize is that, during the time they surf the Web, they are subjected to constant surveillance by potentially hundreds of different private companies. These companies, called advertising networks, track Internet users across the Web, collecting all sorts of personal information about them—their gender, age, income, location, medical concerns, sexual orientation, political affiliations, and music preferences, among many other things. Advertising networks then use this information to deliver highly personalized online advertisements to Internet users, a process known as behavioral targeting.

But advertising networks can use the information they collect for purposes beyond behavioral targeting. In addition to exploiting Internet users’ information to deliver targeted advertisements, ad networks sell the information to third parties, which could include, perhaps surprisingly, the government. Armed with detailed records about Internet users and their online activities, the government has unprecedented access to the most intimate details of peoples’ lives. What seems such a gross invasion of privacy can occur despite the Fourth Amendment’s prohibition against unreasonable searches and seizures by the government. The Fourth Amendment likely does not apply to information gathered for behavioral targeting because of what is known as the “third-party doctrine.” Under the third-party doctrine, the Fourth Amendment does not protect any information a person volunteers to a third party, because that person presumptively has assumed the risk that the third party will reveal the information to the government.

This Comment explores why the third-party doctrine would apply in the context of behavioral targeting, resulting in an unprecedented threat to Americans’ privacy. Arguing that the Supreme Court’s justification for the doctrine is inherently flawed, this Comment sets forth a new way of conceptualizing the third-party doctrine and a corresponding analytical framework called the “competing-interests test.” The competing-interests test ultimately seeks to reconcile the conceptual difficulties that arise when

applying the doctrine not only within the context of behavioral targeting but in all situations in which a third party holds information about another person.

INTRODUCTION 557

1. BEHAVIORAL TARGETING AND THE INTERNET 560

   1. How Behavioral Targeting Works 560

   2. Behavioral Targeting and Free Public Access to Online Content 565

2. PRIVACY 567

   1. Introduction: Overview of Current Privacy Protections 567

   2. The Fourth Amendment and the Third-Party Doctrine 573

   3. Responses to the Third-Party Doctrine 576

   4. New Technology and the Hopeful Demise of the Third-Party Doctrine 578

   5. Does the Third-Party Doctrine Apply to Behavioral

      Targeting? 581

3. A POSSIBLE SOLUTION 583

   1. Reconceptualizing the Third-Party Doctrine: Information/Autonomy Privacy and Third-Party Autonomy 587

   2. The “Competing-Interests Test” 592

   3. Applying the New Third-Party Doctrine to Behavioral Targeting 596

CONCLUSION 599

INTRODUCTION

Justice Brandeis once predicted that, in the future, “[w]ays may . . . be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose . . . the most intimate occurrences of the home. Advances in . . . sciences may bring means of exploring unexpressed beliefs, thoughts

and emotions.”1 Justice Brandeis’s warning, from his famous dissenting

opinion in Olmstead v. United States,2 perhaps seemed far-fetched in 1928 when it was published. Eighty-four years later, however, the Justice’s

prediction has proven startlingly insightful, if not frighteningly accurate. Indeed, true to Justice Brandeis’s vision, in the last decade the government has developed a powerful tool for not only exploring but also exploiting peoples’ “unexpressed beliefs, thoughts and emotions.” That tool is the Internet—or,

1 Olmstead v. United States, 277 U.S. 438, 474 (1928) (Brandeis, J., dissenting), overruled by Katz v. United States, 389 U.S. 347 (1967), and Berger v. New York, 388 U.S. 41 (1967).

2 277 U.S. 438.

more precisely, the capacity to indirectly track individuals on the Internet through private companies that conduct “behavioral targeting.”

Behavioral targeting is an online advertising technique designed to deliver specific, targeted advertisements to Internet users based on their perceived interests. Companies that conduct behavioral targeting, known as advertising networks, are able to predict Internet users’ interests by using sophisticated

technology that tracks and gathers information about users’ online activity.3

The resulting targeted ads are approximately twice as effective as—and, therefore, much more valuable than—other forms of online advertisements.4 As a result, online content providers can fund their entire operations with revenues from selling online advertising space, making it possible for websites to offer online content for an unbeatable price—for free.

Over the last decade, behavioral targeting has proven increasingly important, if not essential, as a means of supporting free content on the Internet. According to industry experts, targeted ads “significantly enhanc[e] the advertising revenue engine driving the growth of the Internet”5 and are a

critical component of “the economic model supporting free online content and services for consumers.”6 But describing behavioral-targeting-supported online content as “free” is somewhat misleading. Online content is “free” only in monetary terms; with respect to privacy, however, behavioral targeting exacts a hefty price. Behavioral targeting requires that ad networks collect and retain immense amounts of data about Internet users. Moreover, under current law,

ad networks essentially enjoy unmitigated leeway to use the information they collect for whatever other purposes they wish. In addition to using Internet users’ information for targeted ads, ad networks trade and sell information to third parties,7 which could include the government. Thus, unbeknownst to the millions of people who regularly surf the Internet, their personal information

1. See TRUEFFECT, ONLINE BEHAVIORAL ADVERTISING: POSSIBLE SELF-REGULATORY PRINCIPLES 2

   (2008), available at http://www.ftc.gov/os/comments/behavioraladprinciples/080411trueffect.pdf (describing the Internet as one big “ad delivery mechanism”).

2. Howard Beales, The Value of Behavioral Advertising, NETWORK ADVERTISING INITIATIVE 3, http://

   www.networkadvertising.org/pdfs/Beales_NAI_Study.pdf (last visited Mar. 27, 2012).

3. Press Release, Network Adver. Initiative, Study Finds Behaviorally-Targeted Ads More than Twice as Valuable, Twice as Effective as Non-Targeted Online Ads (Mar. 24, 2010) (quoting Howard Beales, former Director, FTC Bureau of Consumer Protection), available at http://www.networkadvertising.org/pdfs/NAI_

   Beales_Release.pdf.

4. Id. (quoting Charles Curran, Executive Director, Network Advertising Initiative).

5. See Julia Angwin, The Web’s New Gold Mine: Your Secrets, WALL ST. J., July 31, 2010, at W1.

   has been put on sale for the government to buy up and then use to monitor their online activity.

   
   

   Perhaps surprisingly, the Fourth Amendment—the bulwark of constitutional privacy—likely offers little to no protection because of what is known as the “third-party doctrine.” Under the third-party doctrine, the Fourth Amendment does not protect a person’s privacy in information she has

   volunteered to a third party.8 Likely falling within this definition is information

   collected by advertising networks for behavioral targeting.

   
   

   This Comment explores the privacy implications of the Fourth Amendment third-party doctrine within the context of behavioral targeting. Part I provides a brief explanation of how behavioral targeting works and why it plays such an important role on the Internet. Part II offers an overview of the Supreme Court’s Fourth Amendment jurisprudence pertaining to government searches, including the development of the third-party doctrine, and explores the primary criticisms of the doctrine. It then goes on to explain how the third-party doctrine might apply to ad-network databases, noting that a paradoxical problem would arise if ad networks were forced to obtain Internet users’ consent to conduct behavioral targeting: while Internet users would gain some degree of privacy if they were given notice and an opportunity to opt out of tracking, those users who chose to remain opted in to access free online content would relinquish their privacy to the government because the third- party doctrine, at least under its current formulation, would inevitably apply. Part III presents a critical analysis of the Court’s third-party doctrine, arguing that the problem stems both from a common misconception of Fourth Amendment privacy (as strictly “informational”) and from a limited perception of the justification for the third-party doctrine. The Comment then offers a new analytical framework for the third-party doctrine, called the “competing- interests test,” that incorporates these two considerations. Under this newly conceptualized third-party doctrine, Internet users would retain Fourth Amendment protections even if they consented to behavioral targeting.

   
   

   8 United States v. Miller, 425 U.S. 435, 442–43 (1976).

   1. BEHAVIORAL TARGETING AND THE INTERNET

      
      

      1. How Behavioral Targeting Works

         
         

         Online behavioral targeting involves four key players: (1) the Internet user;

         (2) the content provider, the website that provides online content and displays an advertisement to the Internet user; (3) the advertiser, the company seeking to advertise its product;9 and, finally, (4) the ad network, the company that acts as a middleman to the advertisers and content providers. The ad network is responsible for tracking and...