INSIDER LOOK:
You’re subjected to Google AdSense’s new behavioral targeting by DEFAULT. Goodbye, privacy. File this under my letters to Congress.

Why should Google’s equivalent of wiretapping make you uncomfortable?
On Wednesday, Google announced that its Google AdSense users will be subjected to behavioral targeting by default. They will track the online behavior of up to 30% of the United States’ entire Internet traffic, one click at a time.
This includes nearly all users who visit websites with AdSense ads on them, including you and I.
Moral Impact: The Opt Out Button doesn’t let me Opt Out!!
Yesterday evening, technology news website Mashable.com posed an important question: Does Society Benefit from Behavior-Based Advertising?
1) How it affects Google AdSense users:
Google tells AdSense users that they can potentially earn more by allowing Google to track the behaviors of visitors to their websites:
“Whether the advertiser’s goal is to drive brand awareness or increase responses to their ads, these capabilities can help expand the success of their campaigns and should increase your earnings as advertiser participation increases.”
However, the sticking point is that Google AdSense users cannot opt out of Google tracking their users’ online behaviors. The only control they have is restricting targeting based on general interest categories. From AdSense Help:
“You can opt out of showing ads that are based on user interest categories (e.g. ’sports enthusiasts’)…However, you cannot opt out of showing ads to users based on their previous interactions with the advertiser, such as visits to an advertiser’s website.”
In essence, Google AdSense users will be allowing Google to track their website visitors’ online behavior by simply using the service.
2) How it affects Google AdSense users’ visitors:
All visitors to a website with Google AdSense ads on it will be behaviorally tracked by default.
Default should be Opt In, NOT Opt Out
Google AdSense’s default is that you are opted into being behaviorally tracked.
Even if you opt out: Notice the misleading “Opt out” button below. A closer look at Google’s policy reveals that visitors cannot completely opt-out of being behaviorally tracked, and can only restrict the interest categories they are targeted by. And are visitors even aware that they are being behaviorally tracked in the first place?

Google Takes Advantage of its Influence on Congress
The 500-pound Google gorilla has influenced Congress on the specifics of how the government will regulate Behavioral Advertising.
Let’s open the Congressional history books from June 2008 on behavioral advertising regulation:
Advertising Age covered the Senate Commerce Committee’s concerns about web privacy under behavioral ad targeting:
“Congress is considering enacting “privacy legislation” above the FTC’s call for continued industry “self-policing.” Representatives from Google (NSDQ: GOOG) and Microsoft (NSDQ: MSFT) appeared to be side with the Center for Democracy and Technology in saying that such a law is needed.”
First, let’s take a closer look at the Senate hearing on behavioral ad targeting. You’ll see that Google and Microsoft were a major part of calling for tighter restrictions on behavioral ad targeting. Interesting that an influencer (Google) on the rule-makers (Congress) was able to, nine months after calling for these measures, launch behavioral targeting capability under Google AdSense. It’s like a bait-and-switch where Google was able to influence the Congressional rules under which it wants to operate.
As with any 500-pound gorilla, the bigger you are, the more food you need to consume. And you can also beat our chest and roar louder.
Meanwhile the small guys (several other behavioral ad networks) have tanked: NebuAd and Tacoda lost many of their big name contracts, and were all but shut down in the U.S. Adzilla was shut down (from 99 employees to 1 almost overnight). JellyCloud preventatively shut itself down.
It Borders on Illegal
A multitude of strong statements were made at the Senate Commerce Committee’s Hearing on Behavioral Advertising:
According to Leslie Harris, President of the Center for Democracy and Technology:
“If the interception happens without “affirmative, express consent,” it may well be illegal.”
The Majority Statement by Senator Daniel K. Inouye (D-HI):
“American consumers deserve better. With so much of our commerce and entertainment migrating to the Internet, consumers should not be asked to surrender their privacy each time they go online.”
Google is Wiretapping You, Violating ECRA Law
Under the ECRA (Electronic Communications Privacy Act), wiretaps are banned except under certain circumstances mandated by government. The expanded definition of wiretaps goes beyond phone wiretaps to include “transmissions of electronic data by computer.”
At the Senate hearing on Internet Advertising, Senator Byron Dorgan (D-ND) said this statement regarding the description of behavioral advertising:
“Isn’t that just wiretapping?”
ZD NET journalist Tom Steinert-Threlkeld proposes that Congress requires for a disclaimer to appear on websites practicing behavioral tracking, and I agree:
“Require upfront notices to Web surfers that appear on their screen the first time they visit any site that issues a cookie or uses any other technology to keep a record of their activity on that site. This would apply to any site, not just search sites.”
Yet Google AdSense has made no steps towards issuing a disclaimer.
It Violates even the New FISA Privacy Law
As part of its behaviorally targeted ad model, Google discloses information about its users to third party advertisers in order to solicit higher paying ads for a website.
The Foreign Intelligence Surveillance Law (FISA), amended in July 2008, makes illegal to wiretap or otherwise electronically survey on-shore and off-shore Americans without individual warrants:
“…illegal to intentionally engage in electronic surveillance under appearance of an official act or to disclose or use information obtained by electronic surveillance under appearance of an official act knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000 or up to five years in prison, or both.”
The only compliance with the U.S. Privacy Law that Google currently cites is the U.S. Department of Commerce’s Safe Harbor Program, a generic guideline:
Google adheres to the US Safe Harbor Privacy Principles of Notice, Choice, Onward Transfer, Security, Data Integrity, Access and Enforcement, and is registered with the U.S. Department of Commerce’s Safe Harbor Program.
It Also Violates these Privacy Laws: FCRA, HIPAA
Google has not only violated the FISA Law and ECRA Law: the following laws have been, or will be, violated under Google’s electronic surveillance:
- FCRA (Fair Credit Reporting Act): Serving ads based on a user’s credit report scores, or information that surmounts to providing evidence behind a user’s credit score, including tracking of financial institutions and banks, whether public or private
- HIPAA (Health Insurance Portability and Accountability Act): Serving ads based on the health or current healthcare provisions of a user
Worse than Pornographic Website Surprises
Coming upon an AdSense website is even worse than accidentally stumbling upon a pornographic website. You have no idea when and where you’re being watched online.
1) Which websites have Google AdSense??
You have no idea you’re about to visit a website with Google AdSense on it because they all look innocent. There is no label or unique identifier before you step onto the website. Billions of Internet users regularly visit websites containing Google AdSense, including all users of Google Search, YouTube, and Blogspot, as well as the millions of other websites with AdSense ads on them.
2) Many pornographic websites clue you in to their content
At least the URL and description of many pornographic websites clue you into the fact that the website contains pornography, so you can be warned in advance.
If you’re about to visit a website with AdSense on it, you’d have no advance warning. And these websites are so pervasive that they cannot be avoided. Therefore you can’t avoid being behaviorally tracked.
AdSense Users are now Blind Messengers
AdSense users are being turned into blind messengers for Google. BothAdSense users and their visitors are at the short end of the stick.
This causes multiple economic disconnects:
1) Information assymetry
Google knows much more about an AdSense user’s visitors than the AdSense user cares to share. This creates an imbalance of power that creates the foundation for a moral hazard. Exactly what, if any, are Google’s consequences for misbehavior?
2) Imperfect market
Information is not disclosed to AdSense users nor their visitors. Nor is ad matching quality guaranteed.
3) Not mutually beneficial
Google wins. AdSense users take a chance on an unproven business model with no revenue increase guarantees, by default. Visitors get nothing in return.
Costs Outweigh Benefits
Google’s underlying goal with behavioral tracking is to foster larger buy-in by its advertisers. However, it’s a big tradeoff for a small return: The entire behavioral targeting industry is worth $1.1 billion in 2009, eMarketer reports. Additionally, until we fully progress onto Web 3.0 (Intelligent Web / Semantic Web) and Web 4.0 (Artificial Intelligence / Learning Web), behavioral targeting will not be effective nor completely justified.
Meanwhile, Google is subjecting hundreds of millions of Internet users to behavioral tracking, violating multiple U.S. Privacy Laws in its path. As we have seen in the past 9 months with the behavioral ad network shutdowns (JellyCloud, Adzilla), turtleing and retreating off American soil (NebuAd), and overwhelming contract terminations (Tacoda), advertisers are still very wary of advertising on ad networks that practice behavioral targeting.
The costs of being monitored online far outweigh the minor or unseen benefits.
I’d appreciate your blog comments below before I send a letter to Senator Dianne Feinstein and the Speaker of the House, Nancy Pelosi.
Marissa
Note: AD-Village does not behaviorally target our publishers’ users. We collect aggregate information about a publisher’s website visitors, but the information is not tied to a visitor’s individual identity. This helps us better recommend ads to our publishers, which has proven to increase their ad revenue.
If you are interested in learning about other types of ad targeting, please read my post 10 Types of Ad Targeting.
Tags: ad network, AD Village, Advertisements, Advertising, behavioral, behavioral ads, behavioral advertising, behavioral targeting, concerns, disclaimer, Hearing, mousetrap, opt in, opt out, Privacy, recommendations, Senate, wiretap