TECHNOLOGY USE MAY SURMOUNT E-MONITORING FIRST AMENDMENT DIFFICULTIES
By Jonathan Bick Bick is of counsel to Brach Eichler in Roseland and is an adjunct professor of internet law at Pace Law School and Rutgers Law School in Newark. He is also the author of 101 Things You Need To Know About Internet Law [Random House 2000].
E-commerce tools allow e-monitoring of an Internet user's actions. By collecting information related to an Internet user's site visits, Internet data miners may compile a comprehensive set of data concerning a user's behavior. Typically, mined Internet data includes: how often an Internet site is visited, the user's domain names and countries of origin, what pages they view the most, and the operating system and web browser they use to access the Internet. This data is disseminated to academics, marketing agencies and government agencies. Arguably, such data gathering and sharing could result in chilling of speech. However, technological techniques are available out there to circumvent this potential First Amendment difficulty.
The court in Lamont v. Postmaster General, 381 U.S. 301 (1965), gave rise to the notion of ‘chilling effect‘ on freedom of expression. While no law explicitly prohibits the collection and dissemination of data, the Lamont Court struck down a federal statute requiring the Postmaster General to detain and deliver only upon the addressee's request unsealed foreign mailings of ‘communist political propaganda‘ (Section 305(a) of the Postal Service and Federal Employees Salary Act of 1962). The ‘chilling effect‘ rationale is often used in reference to laws or actions that do not explicitly prohibit legitimate speech, but create an environment that is adverse to First Amendment rights.
Many national newspapers' Internet sites promote data mining by requiring users to input demographic data to gain access to content. E-commerce firms whose clients include The New York Times, Knight-Ridder and Computerworld make content available to Internet users in exchange for user-related information, such as email address, ZIP code, birth year, income level, occupation and gender.
Some data collection efforts are implemented after the Internet visitor has exacted some content from the Website provider. The collection of such demographic information is part of a subscription to a service or time dependent (live) data collection program. To collect, time dependent data firms typically offer Internet users the beginning of an article displayed on a main page. The rest of the article remains ‘below the fold‘ and must be clicked for further access. This click brings an Internet user to a registration prompt.
The e-commerce mining firms value registration, because it provides demographic data that help sell advertising on the Internet site. Advertisers often seek to attract a particular market segment, because of a widely accepted premise that targeted advertising is more cost-effective than mass advertising.
Unlike traditional monitoring, such as subscribing to a newspaper, watching cable television, or borrowing library books, e-monitoring is more intrusive. Typically, print media subscribers only surrender their contact and payment details. Internet subscribers surrender information that allows the content provider to know who and where the Internet user is and what specific information interests that user.
Television watching is normally anonymous (at least before the rise of digital subscription services), and while records kept at a library normally include a patron's name, address, and what books she has checked out, the library's records do not allow the scrutiny available to those who have Internet behavior data, including the path an Internet user takes through an Internet site and how long the user spends reading particular content. Libraries are also unlikely to sell personal information or give it to government agencies.
The core difference between reading an article on the Internet and reading it in print or via a broadcasting agent is that the Internet has transformed the act of content access from a private to a public behavior. Internet monitoring allows the act of content selection to be automatically combined with marketing profiles and filtered for the purpose of complex data mining systems. This privacy intrusion may have adverse consequences with respect to First Amendment rights.
It has been reported that the number of Internet sites requiring registration to access content is increasing, and these sites have found no drop in traffic. Such findings support the contention that while registration is pervasive surveillance, such surveillance is generally acceptable. It may also be argued that the voluntary relinquishing of private information in exchange for content and bandwidth is an acceptable contractual agreement.
It is well known that the content provider pays in part for the provision of content and bandwidth through the sale of personal data to third parties. This further supports the argument that registration is a fair exchange for access to newspapers' Web sites.
The mere existence of privacy policies offers no guarantee of actual privacy, thus the burden of protecting privacy typically falls upon the individual Internet user. Several methods of maintaining privacy are available.
1. It is possible to circumvent the registration process entirely by accessing the same information at an alternate source. Use sources which do not require registration. For example, purchasing Lexis or Westlaw services allows access to most publications without registration.
2. Use incorrect information for registering. While privacy policies of major media websites do little to protect users' privacy, technology can. Instead of relying on policies that often act as waivers and grant the websites license to distribute user information, users need only register with incorrect information or use anonymous ID services.
For about $25 per month, an anonymous ID service can provide anonymous web access services. In both the free and subscription services, these Internet service providers remove sensitive information such as machine names, IP addresses and cookies so that an Internet user can conduct searches and send e-mail anonymously. In addition, such subscription services use SSL and URL encryption technologies to provide additional security in web surfing.
Anonymous Internet activity normally involves the use of an anonymous proxy server. This type of server is also known as a web proxy server. An Internet user seeking eanonymity will have the user's computer contact the proxy server and have the proxy server perform tasks that can only be tracked back to the proxy server. Once the proxy server has performed the requested tasks, it will start a new and separate Internet content transfer with the anonymous user.
In short, existing technology is normally sufficient to maintain the anonymous user's privacy despite the use of the most sophisticated e-mining techniques. Thus, technological techniques are available to circumvent this potential First Amendment difficulty.