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Reactions to the Banning Surveillance Advertising Act

On Tuesday, January 18, Senator Corey Booker (D-NJ) joined with Congresswomen Anna G. Eshoo (D-CA) and Jan Schakowsky (D-IL) to announce the Banning Surveillance Advertising Act. “Surveillance advertising is a predatory and invasive practice. The hoarding of people’s personal data not only abuses privacy, but also drives the spread of misinformation, domestic extremism, racial division, and violence,” Senator Booker said in a statement.

The proposed legislation prohibits “advertising facilitators”- firms that publish advertisements- from disseminating or enabling the dissemination of ads targeted with information such as lists of individuals or specific devices, contact information of individuals, unique identifiers or “other personal information that can be used to identify an individual or a connected device.” Rather, the Act favors “contextual advertisements” based on information an individual “is viewing” or is otherwise engaged with, has searched for, or is in close proximity to related information. There is an exception for targeting to a “recognized place” which the legislation defines as locations such as states, counties, cities, towns, and other named places, but which excludes zip codes.

Violations would be deemed “unfair or deceptive acts” subject to the scrutiny of the Federal Trade Commission (FTC) as well as state attorneys general. The Act also describes a private right of action for individuals.

The proposed legislation was announced with the backing of a variety of advocacy groups, including Accountable Tech, Ranking Digital Rights, the Anti-Defamation League (ADL), Electronic Privacy Information Center (EPIC) Demand Progress, Common Sense Media, the Consumer Federation of America (CFA), Center for Digital Democracy and FairPlay. In early 2021, some of these groups banded together to launch a website and coalition letter at BanSurveillanceAdvertising.com that urged people to lobby Congress to support Senator Booker and Reps. Eshoo and Schakowsky in advancing this legislation. The announcement was also supported by some companies that promote privacy as part of their value proposition, including DuckDuckGo and Proton.

“Surveillance advertising’s main economic function is to enrich ad tech companies at the expense of publishers, consumers and advertisers themselves, and it is high time for Congress to step in,” said Ranking Digital Rights Senior Policy & Partnerships Manager Nathalie Maréchal in a statement. “Banning surveillance advertising will protect individual privacy, reduce corporate incentives to maximize invasive data collection, and spur innovation by unleashing the potential of the digital  contextual advertising sector that has been held back by the dominant surveillance advertising platforms.”

Prominent academics also endorsed the announcement, including Shoshana Zuboff, the Harvard Business School professor and author of The Age of Surveillance Capitalism. “The time for law has come,” she said. “A ban on surveillance advertising will begin to reverse the unbridled growth of this unaccountable power, finally asserting the rule of law and democratic governance over the critical infrastructures of our information society.”

Evan Greer, a Director at the digital rights advocacy group Fight for the Future, a signatory to the Ban Surveillance Advertising coalition letter, tweeted “This is a good bill that would actually reduce the harm of Big Tech’s surveillance-driven business model.”

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Industry analysts and association representatives funded by companies whose business models are reliant on the types of practices the bill would regulate had a different point of view.

The Network Advertising Initiative (NAI), an association of third-party digital advertising companies, said the proposed Act “ultimately harms small business and consumers to the benefit of Big Tech.” The organization’s President and CEO, Leigh Fund, stated that “a better approach is to enact comprehensive federal privacy legislation that provides for consistent, enforceable regulation with joint federal and state enforcement.”

Eric Seufert, who runs the blog Mobile Dev Mo, took issue with the proposed Act’s blanket ban on targeting regardless of whether a user gave consent for the use of personal information. “Shouldn’t users have a choice? Why isn’t consent the starting point for any further use case calculus?” he tweeted.

Some industry voices postulated more catastrophic outcomes. Randall Rothenberg, Executive Chair of the Interactive Advertising Bureau, another industry group that counts Google and Facebook among its 700 members, predicted extreme consequences in a tweet. “The ‘Banning Surveillance Advertising Act’ is a sexy-named bill that would eliminate 140 years of direct-marketing practice, destroy the US Postal Service, kill American retailing, and stop all DTC (direct to consumer) development dead in its tracks.”

The introduction of the Banning Surveillance Advertising Act was not the only action taken by a legislative body to limit targeting advertising last week. In Europe, the Digital Services Act (DSA) advanced with provisions that would limit targeted advertising. A coalition of digital rights organizations and privacy-oriented companies– similar to the group backing the Banning Surveillance Advertising Act in the US– pushed for the provisions in Europe, but stopped short of seeking a ban on information that users had “freely provided,” according to Politico. Instead of a ban, EU users– who already benefit from the privacy protections of the General Data Protection Regulation (GDPR)– would be empowered to opt-out of being targeted. The European Parliament and Council of the European Union will debate the DSA before it likely faces a vote later this year.

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