Big Brother Gets a Makeover: Behavioral Targeting and the Third-Party Doctrine

By Brotherton, Elspeth A. | Emory Law Journal, March 1, 2012 | Go to article overview

Big Brother Gets a Makeover: Behavioral Targeting and the Third-Party Doctrine


Brotherton, Elspeth A., Emory Law Journal


ABSTRACT

A staggering 239 million Americans have access to the Internet and spend, on average, sixty hours each month online, visiting some 2646 websites. What few Internet users realize is that, during the time they surf the Web, they are subjected to constant surveillance by potentially hundreds of different private companies. These companies, called advertising networks, track Internet users across the Web, collecting all sorts of personal information about them-their gender, age, income, location, medical concerns, sexual orientation, political affiliations, and music preferences, among many other things. Advertising networks then use this information to deliver highly personalized online advertisements to Internet users, a process known as behavioral targeting.

But advertising networks can use the information they collect for purposes beyond behavioral targeting. In addition to exploiting Internet users' information to deliver targeted advertisements, ad networks sell the information to third parties, which could include, perhaps surprisingly, the government. Armed with detailed records about Internet users and their online activities, the government has unprecedented access to the most intimate details of peoples' lives. What seems such a gross invasion of privacy can occur despite the Fourth Amendment's prohibition against unreasonable searches and seizures by the government. The Fourth Amendment likely does not apply to information gathered for behavioral targeting because of what is known as the "third-party doctrine." Under the third-party doctrine, the Fourth Amendment does not protect any information a person volunteers to a third party, because that person presumptively has assumed the risk that the third party will reveal the information to the government.

This Comment explores why the third-party doctrine would apply in the context of behavioral targeting, resulting in an unprecedented threat to Americans' privacy. Arguing that the Supreme Court's justification for the doctrine is inherently flawed, this Comment sets forth a new way of conceptualizing the third-party doctrine and a corresponding analytical framework called the "competing-interests test." The competing-interests test ultimately seeks to reconcile the conceptual difficulties that arise when applying the doctrine not only within the context of behavioral targeting but in all situations in which a third party holds information about another person.

INTRODUCTION

Justice Brandeis once predicted that, in the future, "[w]ays may . . . be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose . . . the most intimate occurrences of the home. Advances in . . . sciences may bring means of exploring unexpressed beliefs, thoughts and emotions."1 Justice Brandeis's warning, from his famous dissenting opinion in Olmstead v. United States,2 perhaps seemed far-fetched in 1928 when it was published. Eighty-four years later, however, the Justice's prediction has proven startlingly insightful, if not frighteningly accurate. Indeed, true to Justice Brandeis's vision, in the last decade the government has developed a powerful tool for not only exploring but also exploiting peoples' "unexpressed beliefs, thoughts and emotions." That tool is the Internet-or, more precisely, the capacity to indirectly track individuals on the Internet through private companies that conduct "behavioral targeting."

Behavioral targeting is an online advertising technique designed to deliver specific, targeted advertisements to Internet users based on their perceived interests. Companies that conduct behavioral targeting, known as advertising networks, are able to predict Internet users' interests by using sophisticated technology that tracks and gathers information about users' online activity.3 The resulting targeted ads are approximately twice as effective as-and, therefore, much more valuable than-other forms of online advertisements. …

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