Behavioral Advertising: The Offer You Can't Refuse

Chris Noofnagel, Boalt School of Law, University of California, Berkeley, CA

Stevenson Hall 1300
11:00 AM - 11:50 AM

in 2009 and 2011, we surveyed top websites to determine how they were tracking consumers. We found that advertisers were using persistent tracking technologies that were relatively unknown to consumers. Two years later, we found that the number of tracking cookies expanded dramatrically and that advertisers had developed new, previously unobserved tracking mechanisms that users cannot avoid even with the strongest privacy settings. These empirical observations are valuable for the political debate surrounding online privacy, because the descriptive informs the framing and assumptions surrounding the merids of privacy law. In the political debate, "paternalism" is a frequently invoked objection to privacy rules. However, our empirical work demonstrates that advertisers use new, relatively unknown technologies to track people, specifically because consumers have no hear of these techniques. Futhermore, these technologies are used to obviate choice mechanisms that consumers exercise. Advertisers are a powerful force for the erosion of legal privacy protections, and increasingly, we demonstrate, they are also a froce that robs consumers of any technical ability to avoid online profiling. Our work inverts the assumption that privacy interventions are paternalistic while market approaches promote freedom. We empirically demonstrate that advertisers are behaving in highly paternalistic ways in order to keep consumers in the dark on privacy practices, and to make it impossible to avoid online tracking. Advertisers are so invested in the idea of a personalized web that they do not think consumers are competant to decide to reject it.