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RE: Web Tracking: Facts on the Ground

From: Jules Polonetsky <julespol@futureofprivacy.org>
Date: Sat, 22 Oct 2011 21:10:06 -0400
To: "'Jonathan Mayer'" <jmayer@stanford.edu>, <public-tracking@w3.org>
Message-ID: <008e01cc9120$808f2eb0$81ad8c10$@org>
Sorry to jump in late here.  


My take is that regardless of the debate about "targeting" or behavioral
ads, one of the areas that is central to understand in order to assess the
impact of not tracking is "measurability".  Banner ads are a limited medium
compared to the richness of some other media, but what makes them attractive
to advertisers is that they can be measured.  An advertiser using a third
party ad server can deliver ads across many hundreds of publishers and by
setting and recording cookies can learn how many unique users saw the ad,
how many users who saw which ad on which site later visited their site, how
many users exposed to the ad ended up purchasing or registering.  And if
they don't directly drive sales, they can survey users who have been exposed
to ads across sites they can assess the branding value of the advertising.
All this is dependent on tracking across a large range of web publishers.
Most reporting by ad servers in this manner results in aggregate reports for
each advertiser, but is based on the ad server's cookie level log files.


In the early days of online advertising, there were publishers that served
their own ads, and refused to allow third party ad serving/tracking.  They
were worried about the lag time of third party ad servers, the privacy of
their users, or other companies having insight into user activity, or
preferred to be able to report themselves on the number of unique users that
saw the ad.  Information across sites was apples and oranges, with
advertisers getting widely varying results for the same campaigns.  Large
advertisers didn't want to have to do business with thousands of small sites
and didn't want to have to ship creative to all those sites and get back
reports that didn't fit together. Spending was consolidated on Alta Vista,
Lycos, AOL, Yahoo and others.

Strong pressure from advertisers eventually forced all publishers to accept
third party ad serving and tracking by advertisers.  At AOL, we had market
power to hold out longer than others, but eventually needed to go along.  

Today, Facebook is the only site of note that is able to demand that it
serve ads itself..third party ad servers cant track ads delivered with
cookies (unless a user clicks, of course).  

Just some thoughts.







From: public-tracking-request@w3.org [mailto:public-tracking-request@w3.org]
On Behalf Of Jonathan Mayer
Sent: Thursday, October 20, 2011 5:01 PM
To: public-tracking@w3.org Group WG
Subject: Web Tracking: Facts on the Ground


I completely agree that a shared understanding of web tracking practices is
important for the working group's progress.  And an open dialogue about the
facts on the ground will be invaluable for all stakeholders on these issues.
To that end, I've moved this discussion into its own thread.  I look forward
to a productive discourse.


I offer my take on ad blocking responses, the market impact of behavioral
advertising, and company rights below.


1.  "Some companies already block users from their sites who use ad blocking
technologies because it fundamentally impairs 
their ability to monetize their content."  

I was agreeing with JC's comment that content owners already charge users
for access to some content and services.  This statement is not in question
as we are all aware of content sites like the Wall Street Journal that
charge for access or pay-for premium services like those offered by Linked
In.  I was also expanding this line of reasoning by pointing out that some
sites have blocked users who use ad blocking technologies.  Here is one
example -
to-the-sites-you-love.ars, but others have done so in a less public way.


I am not aware of any popular website that is currently prohibiting or
degrading service for ad-block users.  To my knowledge Ars Technica was the
only major website to experiment with such practices, and it quickly
reversed course after facing a mob of angry users.  My colleague Arvind
Narayanan wrote a year ago about the lessons we might infer about responses
to Do Not Track from responses to ad blocking
(http://33bits.org/2010/09/20/do-not-track-explained/, pasted below).  I
agree with his views.


. . . from the site's perspective, ad blocking would result in a far greater
decline in revenue than merely preventing behavioral ads. We should
therefore expect that DNT will be at least as well tolerated by websites as
ad blocking.


This is encouraging, since there are very few mainstream sites today that
refuse to serve content to visitors with ad blocking enabled. Ad blocking is
quite popular (indeed, the most popular extensions for both Firefox and
Chrome are ad blockers). A few sites have experimented with tiering for
ad-blocking users, but soon after rescinded due to user backlash. Public
perception is a another factor that is likely to skew things even further in
favor of DNT being well-tolerated: access to content in exchange for
watching ads sounds like a much more palatable bargain than access in
exchange for giving up privacy.


2.  "If we use a broad definition of tracking, similar to the FTC's
definition, then we will be potentially impacting over 80% of the online ad

The IAB conducted a survey of the buy side of the online advertising
industry (we canvassed the major ad agencies) and found that when we used
the FTC's definition of OBA, over 80% of all advertising campaigns would
fall under this definition.  We have published this survey in a number of
venues over the years -
ft_Privacy_Legislation.pdf (page4) - and as recently as last week when the
DAA testified before the U.S. House of Representatives. 


This 80% figure has been repeated by a number of advertising industry
representatives.  I have not been able to locate the survey (Mike, I'd
greatly appreciate a pointer).  Here are some of the descriptions I've seen.


-"However, an informal survey of agencies by the IAB suggests behavioral
advertising is extremely widespread: up to 80% or more of campaigns
conducted in 2009 involved some form of cookies or other tracking that could
be so characterized. [Footnote: IAB interviews of advertising agency
personnel regarding use of digital advertising targeting technologies.]"


-"In an IAB survey of ad agencies conducted earlier this year, we found that
80% or more of digital advertising campaigns were touched by behavioral
targeting in some way." [http://www.iab.net/public_policy/1296039]


-"According to an informal survey by the Interactive Advertising Bureau
(IAB), more than 80 percent of advertising campaigns in 2009 involved
tracking of some sort."


I believe the survey was intended to show that the vast majority of online
advertising campaigns included at least one ad buy that set at least one
cookie.  That certainly is plausible to me.  But, of course, that's far
distant from behavioral targeting accounting for 80% of online advertising
revenue, or Do Not Track negatively impacting 80% of online advertising


I wrote a blog post in January detailing why I believe Do Not Track would
not have a significant negative impact on publishers' online advertising
revenues (http://cyberlaw.stanford.edu/node/6592).  I would encourage
interested readers to take a look.  A few key points: a small minority
(about 5%) of ad spend is behaviorally targeted, there are cross
elasticities in online advertising demand, and there are good (admittedly
not perfect) technology fixes available.


3.  "Publishers and content owners have every right, in fact have
fundamental rights, to offer their goods and services as they see fit."

Content is copyrightable.  In the U.S. this right was so fundamental
(sometimes called national rights) that it was written into our
            Article I, Section 8, Clause 8 of the United States
Constitution, known as the Copyright Clause, empowers the United
States Congress:

            " To promote the Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the   exclusive Right to
their respective Writings and Discoveries.

Generally speaking, this right extends for the life of the author plus an
additional 70 years.  To own a copyright means that the author owns a bundle
of exclusive rights (see Title 17, Chapter 1, Section 106 of the U.S. Code)
html.  One of those rights is the right to decide how your work is
distributed, which includes the right to exclude others from seeing or using
your works, i.e. to offer access to your work under your own terms,
including charging a fee or requiring viewers to allow advertising.  This is
what I mean by fundamental rights of publishers and content owners.

I could discuss contractual rights and the fact that most websites have
Terms of Service that reserve the right to offer their content and services
to consumers on the site's own terms, but that is not necessary a
fundamental right.  We could also have a discussion here about patent rights
since many sites rely heavily on patents, but again, I think the copyright
issue best illustrates the fundamental rights of publishers and content


To be sure, federal and state laws provide a number of legal rights to
businesses.  But they also impose a wide array of regulatory restrictions.
I certainly do not share the view that copyright is a "fundamental right."
The Constitution's Copyright Clause empowers Congress to pass copyright
protections; it does not mandate such legislation.  The same holds true for
patents.  As for website Terms of Service, they would be governed in almost
all cases by state contract law - which regularly declines to enforce
provisions on public policy grounds.


For our purposes, the ultimate legal question is whether there would be any
constitutional infirmities in requiring the same service for Do Not Track
users.  I do not see any.

Received on Sunday, 23 October 2011 01:10:36 UTC

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