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Behavioral Advertising Could Be Illegal
NebuAD leaves ISPs vulnerable to wiretap, privacy laws....
by Karl Bode 09:55AM Tuesday May 20 2008
CNET's Declan McCullagh e-mails me his latest piece, which suggests that ISPs who monitor and sell their customer browsing data could be running afoul of decades-old wiretapping laws. While I've been writing about behavioral advertising for a while, Charter's announcement last week of their decision to use NebuAD technology was the first glimpse many had of the concept. The pertinent portion from CNET's piece:
quote:
At least three wiretapping-related federal laws restrict what broadband providers can do: the Electronic Communications Privacy Act of 1986 (ECPA); the Communications Act of 1934; and the Cable TV Privacy Act of 1984. . . the cable privacy law is unusually onerous because it requires the "prior written or electronic consent of the subscriber" before any personally identifiable information can be collected.
In other words, a skilled lawyer could argue the current method of simply offering an opt-out page (which only opts the user out of targeted ads, not data collection) is not enough. Obviously Embarq, who also uses NebuAD, is exempt from the cable law, and Google's Adwords is exempt from all three. But cable's vulnerability to lawsuits may explain why the NebuAD system has so far only been embraced by the most cash-strapped operator.

I couldn't understand why Charter, in a recent interview, wanted to pretend that NebuAD didn't use deep packet inspection. Now it's clear that the company was simply covering its legal posterior. Since the Cable TV Privacy Act requires that any simple cash grabs related to privacy require a detailed, working opt-out system, Charter's trying to sell it as a service "enhancement" akin to offering faster speeds -- in order to skirt federal law.

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Hazy Arc

join:2006-04-10
Greenwood, SC
Reviews:
·CenturyLink
·Embarq Now Centu..

Embarq...Don't Make Me Laugh

One would think that with the increased revenue Embarq was gaining from the use of NebuAD, they would increase the quality of service or expand into rural areas. They have done neither. In fact, my connection has steadily gone downhill in the past month or so.
Expand your moderator at work

JGROCKY
Premium
join:2005-05-19
Chatham, ON

1 recommendation

2008 will define the Internet for years to come!

It will be interesting to see how this all plays out in the months to come as the all mighty dollar faces off against Ethics and Morals!

... my naive side assumes people will see the light, but unfortunately I suspect it will require laying law to protect people's privacy and online rights!
--
TSI Rocky - TekSavvy Solutions Inc.
jc100

join:2002-04-10

1 recommendation

Re: 2008 will define the Internet for years to come!

Law? Rights? I see you aren't from the U.S. so we'll forgive your assumptions. Both those left when the numbnuts took office and created that documented named the Patriot Act. Those rights you speak of do not exist. Hell, it wouldn't amaze me if these ISPS played the national security card that is benevolently being used to rape us of our freedoms one by one. ISP to government: Our collecting user data can help fight the war on terror by knowing what customers browse. If someone browses bomb or jihad, we'll notify you immediately.

JGROCKY
Premium
join:2005-05-19
Chatham, ON

Re: 2008 will define the Internet for years to come!

Yeah... You're right, I'm not from the US but this one will definitely need to be hashed out, patriot act or not. ISPs aren't agents of the state and should never be.
--
TSI Rocky - TekSavvy Solutions Inc.
jc100

join:2002-04-10

Re: 2008 will define the Internet for years to come!

O I agree, I just have no faith in the government or this administration working them out. I don't even know if the next guy or girl will. Frankly, this government has us right where they want us. It's called scared, panicked and thinking the world is out to get us. Therefore, they can pass any law, and take away our freedom, all under the guise of security. I am sure these ISPS recognize this climate and can get away with their actions.

JGROCKY
Premium
join:2005-05-19
Chatham, ON

Re: 2008 will define the Internet for years to come!

Yeah... I'm seeing that looking at your situation from the outside. Hopefully the new person coming in will see the value in putting a little weight in this issue. (fingers crossed for you)

The Canadian side seems to often feed to some extent on the US (sometime the other way around, but rare), so I for one and hoping the FCC or the government does the right thing on this one... It has to.

Being passive on this topic pretty much spells the beginning of the end for the internet as we know it...
--
TSI Rocky - TekSavvy Solutions Inc.
jc100

join:2002-04-10

Re: 2008 will define the Internet for years to come!

Well the sad part is you guys are headed down the same road. You elected a conservative (think it was) leader after having a liberal party leader in place for a long time. Excuse me if I got this reversed but I think I'm correct. All I know for certain is your new leader is more closely aligned with Bush and his dumb ideologies. That definitely isn't good news for Canada either.

JGROCKY
Premium
join:2005-05-19
Chatham, ON

Re: 2008 will define the Internet for years to come!

said by jc100:

Well the sad part is you guys are headed down the same road. You elected a conservative (think it was) leader after having a liberal party leader in place for a long time. Excuse me if I got this reversed but I think I'm correct. All I know for certain is your new leader is more closely aligned with Bush and his dumb ideologies. That definitely isn't good news for Canada either.
Yup... you got the order right, and possibly right on the last thought as well unfortunately.
--
TSI Rocky - TekSavvy Solutions Inc.
jc100

join:2002-04-10

Re: 2008 will define the Internet for years to come!

Guess the world is full of morons these days. Instead of electing leaders who will best serve them, we get ones who run things to the ground. Canada has always been seen as a liberal country when the U.S. has shifted. I really hope you don't go down that same slippery slope, though I fear you already have. Ugh. Does Canada have the same equivalent of the Patriot Act or similar? Im not sure, as I can't say I follow Canada as closely. Btw, Ontario is a great province. Been to multiple parts, but never outside. Been via Detroit (Ambassador Bridge) and to Niagara Falls. Quite amazing.

JGROCKY
Premium
join:2005-05-19
Chatham, ON

Re: 2008 will define the Internet for years to come!

We don't have the Patriot Act (at least not yet), so for now we're sort of safe, but who knows right now...
--
TSI Rocky - TekSavvy Solutions Inc.
nasadude

join:2001-10-05
Rockville, MD

IP right in own personal data?

I wonder if the argument can be made that a person has copyright over his own personal data? hell, with the law as it is these days, just writing something down confers copyright protection.

A person could then sue anyone using that data in a manner they don't like.

dcurrey
Premium
join:2004-06-29
Reviews:
·Time Warner Cable
·Cincinnati Bell
·ViaTalk

Re: IP right in own personal data?

I was kind of wondering something like that also. I create a webpage with my own ads added. The isp inspect and changes page and republishes it with different ads. Does this no violate my copyright on the page.

Couldn't any website sue the isp since they are not only changing the content but are hurting the income that the page owner could have received if the proper ads are in place.
amigo_boy

join:2005-07-22
said by nasadude:

I wonder if the argument can be made that a person has copyright over his own personal data?
It would be a little more involved than that. But, it's possible. ISPs would argue that your activities are "facts" and facts can't be copyrighted. But, you could argue that your activities as a whole (the compilation of individual activities/facts) is creative expression. Even that your online activities are a "performance."

It would be a stretch. And, all they'd have to do is change their ToS to say you surrender your copyright interest in exchange for using their service.

The stronger position is to sue ISPs using the same laws used to sue them over disclosing information to the government. Those laws were put in place to prevent telcos from disclosing personal information (like call records). Disclosing information about sites you visited seems similar to disclosing phone numbers you called.

Mark

GTJiga
06 GT
Premium
join:2002-02-02
Azle, TX
kudos:1

NebuAD

Charter starting using that NebuAD junk as well. I received a letter in the mail from them explaining how this will "increase my online experience!". HA! What a crock of shit!

They offered an Opt Out from the NebuAD on Charter's website, all it does is store a cookie for you but if you ever clean your cookies out you have to do the opt out again...

Trying to find another way to do this instead of using Charter's opt out way.
Mr Matt

join:2008-01-29
Eustis, FL
kudos:1
Reviews:
·Millenicom
·Embarq Now Centu..
·Comcast
·CenturyLink

Embarq should be subject to the communication act of 1934

Unless Georgy Porgy gives Embarq a pardon I believe that Emabaq should be held accountable for wire tapping under the Communication Act of 1934. In Georges world of no regulation, corporations have been allowed unrestricted abuse of American Citizens. They do not have to provide accurate price quotes and are allowed apply fraudulent charges and fees. Behavioral Advertising is another slap in the face to consumers by big business. It is time for the BS to stop. I am particularly concerned because the two Broadband ISP's in my area are Embarq and Comcast. Verizon does not count because of the 5Gb Cap.
clickie8

join:2005-05-22
Monroe, MI

The Illusion of Anonymity

Nebuad likes to talk a lot about how anonymous this is, but I suspect that is just between the ISP and Nebuad. I have to believe the second you indicate the slightest interest or make a purchase in a product served from an ad linked to your "highly anonymous one way hash", the gig is up. These people can equate your hash to you, and do so without running afoul of the agreement between Nebuad and the ISP.

Sure, Charter isn't violating your privacy in this instance, third parties do the dirty work and they are under no obligation whatsoever to protect your personal information or browsing history.

hairspring

join:2007-11-23
Oakville, ON

It won't matter

ISP's will just add a clause to the contract indicating that the customer agrees to the inspection of their traffic.

It will go out as an addendum which less than 1% of customers will even look at or recognize.

MrMushroom

@cablerocket.net

Re: It won't matter

and even if you read it,you still dont have a choice . only thing you can do is change isp. but that sometimes is not an option

DeeplyShrouded

@comcast.net

Welcome To 1984....

There are cameras everywhere watching you, computers that
keep track of your purchases via the ATM, your vehicle is
tracked via EZ-Pass toll convenience, the books you read
from the library are tracked via your library card.
Even cash is becoming the same way due to data mining.
X took $7.99 out of their account on this date at this time.
20 minutes later, the security camera at the bookstore
captured a person purchasing a book for $7.99.
Face recognition software that matches up the ATM withdrawl
image with the security camera image predicts a 90% match.
George Orwell was correct and his world is today.
Even at home, if you have a PC with a webcam and microphone,
there is malicious software out there that can turn your
camera and microphone on without you knowing it.
Your every move is tracked via that tiny radio transceiver
with built in GPS that sits in your pocket commonly known
as a cell phone.
One reason it took so long to catch the unabomber was he did
not rely on technology. He lived in a place with no modern
appliances, electricity, computers, or cameras.
Yep, 1984 is here and the tracking begins from the day you
are born. You are tracked until the day you die and even then,
you can be tracked for years afterward via people looking
up where you're buried via findagrave.com
There is no such thing as being anonymous in the world anymore.
9/11 was the perfect opportunity to have any form of privacy
taken away from you, in the interests of national security
of course.
Suppose you built a compound in which to live that was
self sufficient. Solar panels for power, you grow your own
food, and you don't bother anyone and expect to be left alone.
So, what are you hiding? Nothing? Then why the compound?
Guilty until proven innocent. You have to explain your
actions as to why you built the compound, and even then
your explanation will be met with suspicion.
Think that compound will protect you? Ask the branch
davidians.
Private property is a thing of the past. Police can enter
any time if they have "probable cause".
If you get arrested, they can and they will take a sample
of your DNA. All that stuff I just typed would drive a
conspiracy theorist insane.
So, you're online on a network you do not own, have no
control over and you expect privacy for your data?
No such thing. Never has been such a thing and there will
never be such a thing. As I said, welcome to 1984.

--Deeply Shrouded & Quiet
--Central Control! D-Dial #49

DeeplyShrouded

@comcast.net

Re: Welcome To 1984....

»www.wnbc.com/health/16337293/detail.html

Google storing health records? My point has been made.

--Deeply Shrouded & Quiet
--Central Control! D-Dial #49
DMNTD

join:2002-10-19
Austin, TX
b i n g o
ackman

join:2000-10-04
Atlanta, GA

so what?

Until AT&T is prosecuted for illegally serving up all our data to the government, in violation of federal law, who the he11 cares what any other company does with our private data?
NetKrazy

join:2007-11-29
Littleton, CO

So what is the root of the complaint?

Is it truly the idea of the technology that’s a problem or is it the ‘potential for abuse’ that causes most of the issues. The fact that’s what’s said to be anonymous at the flip of a switch becomes everything you ever wanted to know about Bob and more. Considering it’s nothing that’s hidden today where MSO’s and their engineers could listen to your phone calls, watch all your network traffic, read your emails and learn far more about you than anyone would care to share. The idea of privacy is an illusion in the broadband world your “protected” blog post hidden from the world is readable by their systems people. Yet you trust that they don’t share it or read it or post it somewhere else.

Or is the main complaint that the corporation gains revenue yet the customer see's no tangible value? Their rates continue to climb year over year despite these attempts at wrestling revenue from the data stream? If your provider guaranteed no rate increase for the year or for two would you still have the same complaints?

ashishP

@pacbell.net

Why don't they use Adzilla?

Check out www.adzilla.com. They use more anonymous data approach - not necessarily user specific. Why dont these carriers use them instead?
NetKrazy

join:2007-11-29
Littleton, CO

Re: Why don't they use Adzilla?

Meet the new boss same as the old Boss, while I don't know their specific technical base their "about us" reads almost the same. "Realtime traffic" being the operative words, if nothing else the term anonymous in most of these cases is nothing beyond "The service provider didn't tell us you were Bob Smith" but they still know who you are.

Consider this:
A person robs a store and is later placed in a lineup to be identified. The fact that the victim didn't know the guys name in this example means the person is entirely anonymous with one exception.. the victim can still identify him because he knows who he is.

A name and an address is but one means of identification, habits can be just as telling.
NetKrazy

join:2007-11-29
Littleton, CO

Another thought, on this

Do you gmail?

Google created a email platform that matches keywords in your email to provide context based ad's to it's subscribers everyone knows this and agrees.

Now if you are a Google user would you scream privacy if I installed an appliance in your ISP that scanned all incoming emails and based on keyword allowed that information to be used to send ad's inside your bill, displayed on their portal, routed to your individual STB like Comcast is trialing..

If you don't use gmail, I can understand you screaming "no" but if you do... would you be for, or against this practice.

What's more what would you say is the difference in the two practices?
EPS4

join:2008-02-13
Hingham, MA

Re: Another thought, on this

Well, I consent to Gmail providing these ads, and they're a precondition to service. And I have other secure email accounts I can use if I don't want Google looking in, while in your scenario all of my emails are being examined no matter how I send them.
NetKrazy

join:2007-11-29
Littleton, CO

Re: Another thought, on this

Minor detail and perhaps I wasn't clear, Like google it assumes only inbound mail... so you would have the option to use any other mail provider. In using that providers service you would be making the election........

But, now this does raise an interesting point... which may be what you were pointing to.. if the appliance sat in the middle purely reading all port25 traffic... I think in a way this draws a clean image of what could be termed 'acceptable' or not.

In another light.. what would the MSO's have to say if NebuAd or Phorm approached level3 and said we want to sit in the path of all your transit circuits.

Would it still be an "Enhanced internet experience?" Enhancing it for all... instead of "some"

jester121
Premium
join:2003-08-09
Lake Zurich, IL

Once again...

Once again we see what happens when people study law at journalism school. Or maybe I should say when people learn to write before they can read.

47 USC Sec 551(a)
(b)(2) A cable operator may use the cable system to collect such information in order to -
(A) obtain information necessary to render a cable service or other service provided by the cable operator to the subscriber;

If the cable operator proclaims that "other services" includes targeted ad, they're exempt.

Clue Here

@charter.com

NebuAD

Every major cable ISP uses NebuAD. Charter simply is admitting it up front before they deploy it.

mmainprize

join:2001-12-06
Houghton Lake, MI
Reviews:
·Charter

Where is my cut

ISP's should not be doing this, if Charter dose then they should make it opt in, and split the money with me like I save $5 a month on HSI on top of my bundled savings.

Like other always have done in the past, NebuAD should be giving free HSI for the tracking info they collect and the AD sales income, like NetZero always did.

Hehe

@ssa.gov

What about monitoring bittorrent content?

Would ISPs also be wire-taping when they monitor bittorrent data, then use that data to forge packets to block or slow the content?