I Fought The Law
It’s easy to have a cynical view of legislation. Listening to the U.S. Senate Committee on Commerce, Science, and Transportation’s recent hearing on "The Debt Settlement Industry: The Consumer’s Experience" won’t improve your feelings on the subject unless you think government needs to do more. If I was a debt marketer watching this hearing, it would leave me feeling both nervous and frustrated. The tone is so accusatory, so judgmental that it shouldn’t be called a hearing but a damning. While I’m sure the debt settlement industry has some serious flaws that warranted this hearing, you get the sense that the hearing didn’t want to work on the flaw. It just wanted to make sure those in the industry knew how upset it made the Committee. Something about the whole production reminded me of a saying talking about the political process, one arguing that politicians do not focus on what makes a difference but what will get them elected / keep you in office. It’s easy to understand how one could go from noble intent to virtual sell out. Unlike certain judicial positions the majority of lawmakers must earn their keep, but unlike performance marketing where earning one’s keep also means earning money. In the political sphere, the performance metric is votes not value add to the society.
As we’ve seen on the state level, the best way to make a difference is to find an issue that you know people will care about and start announcing how you will do something about it. The problem with that approach is that it doesn’t have an equivalent of a revenue per thousand metric. Because people aren’t universally rational, they can easily place an improper emphasis. I think one study mentioned how people are more worried about being hit by lightening than being in a car crash; yet, the latter has a much great chance of happening. So it is in politics. The lightening bolt of the moment for certain politicians once again focuses on the online advertising space. Instead of the FTC looking into deceptive marketing practices, the proposed bill wants to impose restrictions around targeting. The focus is, as the first lines of the draft states, "To require notice to and consent of an individual prior to the collection and disclosure of certain personal information relating to that individual." Nothing new about the emphasis, but this week marks the first time the public has had a chance to read what it says, offering a glimpse at how lawmakers view the overall internet advertising space.
Spoiler alert – the lawmakers don’t see the world in the exact same way we do. The differences revolve around a combination of a) how the lawmakers define our world, and b) how we should practice what we do. Thinking about the first, as we far as we can tell, some key definitions revolve around personally identifiable information, and what they call sensitive information. The first includes what we normally expect, first name, phone, social security, but it also contains the following, "Any unique persistent identifier, such as a customer number, unique pseudonym or user alias, Internet Protocol address, or other unique identifier, where such identifier is used to collect, store, or identify information about a specific individual or a computer, device, or software application owned or used by a particular user or that is otherwise associated with a particular user." Examples of sensitive information include race, religion, sexual orientation, financial records, "precise geolocation information." Finally, you can get a clue about what might be expected given that the definitions section also includes "render anonymous," defined as, "to remove or obscure covered information such that the remaining information does not identify, and there is no reasonable basis to believe that the information can be used to identify—(A) the specific individual to whom such covered information relates; or (B) a computer or device owned or used by a particular user."
If you define the world differently, the rules around the definitions will only exaggerate those differences. We see that here. The heart of the matter comes in the form of consent. Must marketers obtain consent in advance of certain practices, and if so, how much? I don’t envy the lawmakers who felt compelled to tackle this problem. Offline companies have so much data on us, and we rarely have insight into just who gets our data and what we can do about it. There’s something about the online world that when stoked can cause the average person a disproportionate amount of anxiety compared to the relative threat. As I understand it, behavioral targeting is the underlying issue (rather than say general concerns over sites that collect data). All of which brings us to the notion of consent. Can you imagine if we had to give permission to a site so that they could retarget us? Or, if we had to give permission for our surfing habits to contribute to a data exchange? Asking permission is always harder than forgiveness, so the pure play ad guys will lose. Luckily, the bill doesn’t seem that Draconian.
We must remember that nothing has happened yet. We are in the very early stages of any potential outside regulation. And, of course, no one will be happy. Ad groups call it flawed. Consumer groups say the ad groups dodged a bullet. One of our favorite law firms went out on a limb and called it workable. Ultimately, that there is no national legislation governing how companies tell consumers that they are collecting data, is that a good thing or a bad thing? Naturally, the author of the bill says, "our goal is to enhance electronic commerce — we are not seeking in any way to disable targeted advertising." Let’s hope that as it works its way into law the execution doesn’t deviate from the intent. The web is such an inherently self-regulating vehicle, where, for example, if a company errs, that doesn’t stay secret. It feels as though putting rules versus simply creating a deterrent for incorrect behavior would work much better.
