Ever since Robb Topolski unleashed his exposé on behavioral advertising company NebuAd, behavioral advertisers and their partners have found themselves in the hot seat. And judging by the looks of it, that heat isn’t going to let up anytime soon. You’ll recall that back in May, Representatives Joe Barton (R-TX, Chairman and Ranking Member of the Committee on Energy and Commerce) and Edward Markey (D-MA, Chairman of the Telecommunications and the Internet Subcommittee) sent a letter to NebuAd’s CEO, politely asking him to put his pilot tests on hold, pending an investigation into the company’s practices. A coalition of 15 consumer advocacy and privacy groups, including Public Knowledge, voiced its support for Barton and Markey’s letter and urged the Congressmen to continue their investigation into the practice of behavioral advertising. And continue they have.
In advance of a House Committee on Energy and Commerce hearing on Thursday on the topic of Deep Packet Inspection (DPI), Barton, Markey and Representative John Dingell (D-MI, Chairman of the House Committee on Energy and Commerce) have taken aim at Embarq, one of NebuAd’s ISP (Internet Service Provider) partners. In a letter to Embarq CEO Tom Gerke yesterday, the three Representatives waste no time in asking the tough questions. Where was Embarq’s test with NebuAd conducted? How many users were affected? Did Embarq notify its subscribers beforehand? Why did the company choose to use an opt-out mechanism rather than an opt-in? With any luck, we’ll have answers to all of these questions soon enough–the letter requests a response by Monday, July 21.
Ultimately, Congressional involvement might prove to be moot in the case of NebuAd, as the past few weeks have seen the company’s ISP partners fleeing like so many rats from a sinking ship. WOW! (Wide Open West), CenturyTel, Charter, Bresnan and even Embarq have all suspended their trials with NebuAd, after witnessing the massive amounts of negative publicity that DPI-driven behavioral advertising can generate. While this is encouraging, it’s important to remember that NebuAd isn’t the only game in town–if the company falters, competitors like Front Porch and Phorm are waiting in the wings to court its customers. For that reason, it would be extremely welcome to see a firm denouncement of this sort of behavioral advertising from Congress, a court or a regulatory agency–one that would discourage other companies from following in NebuAd’s footsteps. Given the bipartisan concern that we’re seeing for the privacy issues that the practice raises, such a ruling seems well within reach.
The full text of the letter is below:
July 14, 2008
Mr. Tom Gerke
Chief Executive Officer
Embarq
5454 W. 110th Street
Overland Park, KS 66211Dear Mr. Gerke:
We are writing with respect to a recent test conducted by Embarq to tailor Internet advertising to the web-browsing patterns of individual Embarq subscribers. We are interested in the nature of this test as well as the impact that this test, and the underlying technology it employed, could have on consumer privacy and other issues.
We understand that Embarq conducted a test earlier this year in a select community in conjunction with NebuAd to create consumer profiles for the purpose of serving ads to consumers based upon their search and surfing habits. As you may know, questions have been raised regarding the applicability of privacy protections contained in the Communications Act of 1934, the Cable Act of 1984, the Electronic Communications Privacy Act, and other statutes, to such practices.
In particular, we are concerned that Embarq may not have directly notified the subscribers involved in the test that their Web use was being analyzed and profiled. We therefore request that you answer the following questions in order for us to better understand the nature of the test conducted, its impact on consumers, and the broader public policy implications of this technology.
1. In what community was the test conducted and how was that community chosen?
2. How many subscribers were involved in the test?
3. How did Embarq notify subscribers in the affected community of the test? Please provide a copy of the notification. If Embarq did not specifically or directly notify affected subscribers, please explain why this was not done.
4. Did Embarq conduct a legal analysis regarding the applicability of consumer privacy laws on the service used in the test? If so, please explain what that analysis concluded.
5. Please explain why Embarq chose to conduct the test allowing consumers who objected to “opt out” rather than first asking customers to “opt in.”
6. How did Embarq notify subscribers in the affected community of their opportunity to “opt-out” of the test? If Embarq did not specifically or directly notify effected subscribers of the opportunity to “opt-out,” please explain why this was not done.
7. How many subscribers in the affected community opted out of participating in the test?
8. Did Embarq conduct a legal analysis regarding the adequacy of the “opt-out” notice and mechanism employed to allow consumers to effectuate this choice? If so, please explain what that analysis concluded.
9. What is the status of the consumer data collected during this test? Has it been destroyed?
Thank you in advance for your attention to this matter. We respectfully request a response by Monday, July 21, 2008.
Sincerely,
s/John D. Dingell
Chairman
Committee on Energy and Commerces/Joe Barton
Ranking Member
Committee on Energy and Commerces/Edward J. Markey
Chairman
Subcommittee on Telecommunications and the Internetcc: The Honorable Cliff Stearns, Ranking Member
Subcommittee on Telecommunications and the Internet