The Expectation Of Privacy And Behavioral Marketing

By Robert Wice

Underwriter, Beazley Group 

What is the expectation of privacy in behavioral marketing? Are companies being transparent about how they are collecting your information and then selling that information?  The legal questions regarding history-sniffing, deep-packet inspection, and tracking of app downloads built into PDAs all revolve around those same questions of expectation of privacy.  Do you expect that when you go to a site or you buy something, the information about that event is going to be sold to someone else? 

We, as consumers, are the product that the advertisers want.  And that's the important way to look at it, I think.   

The Federal Trade Commission (FTC) recently recommended the creation of a "Do Not Track" function, which would be built into web browsers and would allow consumers to opt out of having their information collected and tracked.  It's not a list, per se, that the FTC is going to be keeping, like it does with the "Do Not Call" list for telemarketing. Interestingly enough, consumers who decide to opt out might have a different web browsing experience from that day forward, which might not actually be a good thing for them.  But that being said, it's their choice and that's the key there. 

Congress is certainly interested in this issue, which is demonstrated by the Kerry-McCain Privacy Protection Bill, which came out in April, which was followed soon thereafter by the Do-Not-Track-Online bill from Senator Jay Rockefeller. 

In the Kerry-McCain Bill, there is no private right of action regarding companies that did not allow consumers to opt out of having their information being collected.  The Rockefeller bill takes it a step further and allows individuals to sue companies that are in violation, which has made it popular with consumer protection groups. 

Interestingly enough, Google, Microsoft and Mozilla actually do have an opt-out function in the latest version of their software. It's just that it wasn't well-publicized, so nobody really knows about it. 

At this point in time, there is speculation that the Do-Not-Track-Online bill will be an amendment to the Kerry McCain bill.  But whatever happens, this is an important aspect of online business practice that has been garnering more and more attention recently. 

Robert D. Wice is the U.S. Focus Group Leader for Beazley's Technology, Media and Business Services team.  Bob has been with Beazley since 2005, underwriting technology, network security and privacy insurance for large risks.  With more than a decade of experience in the network security and privacy insurance space, Bob started out in 1999 with LLC, one of the first providers of network security insurance, where he was General Counsel and Director of Business Development.  Bob then was one of the first team members of the AIG eBusiness Risk Solutions Group, helping grow the netAdvantage product line.  Bob is a graduate of Georgetown University and Emory University School of Law and is an active member of the Georgia Bar.  He is based in Beazley's Farmington, Conn., office.