Behavioral Advertising: The Cryptic Hunter and Gatherer of the Internet

I. INTRODUCTION II. ONLINE BEHAVIORAL ADVERTISING A. Targeting B. Retargeting C. What is FetchBack? III. HOW USERS ARE TARGETED A. The Type of Information Gathered B. How that Information Is Gathered. IV. THE PROBLEMS WITH BEHAVIORAL TARGETING A. Harm Through Profiling B. Harm Through Data Fusion C Harm Through Information Leaks D. Harm Through Lack of Consent IV. PROPOSALS TO PROTECT INFORMATION PRIVACY A. Legislation B. FTC Regulations C. Privacy Policies and User Consent 1. Clearer Approval 2. Greater Transparency D. User Consent 1. Opting-Out Option on a Retailer's Page 2. Opting-Out of FetchBack's Services 3. Opting-In V. LOOKING FORWARD A. Model for the Future B. Conclusion I. INTRODUCTION You see a shadow lurking around the comer. You hear the creak of a door. You sense that someone is watching you. But then you look and listen, and you realize no one is there. But what if you were being watched, followed, and tracked and had no way of knowing? Enter behavioral advertising--the rich, talented, and mysterious Big Brother of the Internet. Online shoppers feel bamboozled when they browse for a particular item online and then become "haunted" by the same, or sister, products. Julie Matlin contemplated buying a pair of shoes online at Zappos, but did not go through with the purchase. (1) Even though Matlin did not want the shoes, the shoes appeared to want Matlin: "An ad for those very shoes showed up on the blog TechCrunch. It popped up again on several other blogs and on Twitpic. It was as if Zappos had unleashed a persistent salesmen who wouldn't take no for an answer." (2) The ads that tirelessly trail users from site to site are a form of state-of-the-art online behavioral advertising known as retargeting--a type of advertising that "connects advertisers with past website visitors to entice those visitors to complete their online transactions or purchases." (3) This Note will break behavioral advertising down in five parts. Part II explains the difference between targeting and retargeting and points out major companies in each category. Part III describes how online users are tracked. Part IV discusses the problems and concerns with tracking. Part V introduces ways in which law makers, the Federal Trade Commission ("FTC"), and individual online retailers can improve consumer education through transparency and obvious privacy and opt-out choices. Part VI provides a conclusion and a goal for the future of behavioral advertising. II. ONLINE BEHAVIORAL ADVERTISING Since the Internet boom of the mid-1990s, online advertising has evolved more than any other traditional form of advertising due, in part, to the advent of behavioral targeting. (4) Online behavioral advertising tracks consumers' online activities in order to deliver tailored advertising for goods and services that they are likely to click on, view, and ultimately purchase. (5) Cutting-edge algorithms analyze a user's online activity and deduce a user's likely inclinations. (6) Such a sophisticated method is made possible by the implementation of cookies, which are "small data file[s] (up to 4KB) created by a Web site you visit that [are] stored on your computer either temporarily for that session only or permanently on the hard disk (persistent cookie)." (7) The cookies are what enable data collectors to track and report the behavior of the user. Using the data from the cookies, users are separated into profiles. These profiles provide information such as which websites and products have been viewed, demographics, and. when available, personality traits pertaining to the specific individual. (8) Tracking the user is extremely valuable because it allows businesses to narrow their approach and display items that more closely align with what interests a specific person, based on his or her predilections and search history. …