Future Imperfect: Googling for Principles in Online Behavioral Advertising

I. 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. …