Using Technology Can Overcome First Amendment e-Monitoring Worries

e-Commerce tools allow e-monitoring of an Internet user's actions ' but the desire of companies and others to know and to track what an Internet user does on the Internet isn't as simple an issue as just setting up the technology and being done with it.

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 a user viewed (or views) the most, and;
• The operating system and Web browser that a person used (or uses) to access the Internet.

This data is then disseminated to academics, marketing departments and government agencies. But some users are not comfortable with that scrutiny. They argue that such data-gathering and data-sharing could result in a chilling of speech.

Technological techniques, however, are available to circumvent this potential First Amendment difficulty.

Defining 'Chilling Effect'

The Supreme Court, in Lamont v. Postmaster General, 381 U.S. 301 (1965), gave rise to the notion of a “chilling effect” on freedom of expression. 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.

Read All About ' Me!

Many 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 e-mail 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 Web site 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” (a reference to a printed newspaper carrying the rest of a story below the midsection fold of the paper) and must be clicked for further access. This click brings an Internet user to a registration prompt.

e-Commerce Monitoring:
A Different Story

The e-commerce data-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.

But unlike with traditional monitoring, such as providing data for subscribing to, or keeping track of customer satisfaction with, a newspaper, watching cable television or borrowing library books, e-monitoring is more intrusive. Typically, print-media subscribers surrender only 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, and other data.

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 he or 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 to give it to government agencies.

Private to Public

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 on 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.

On the other hand, the mere existence of privacy policies offers no guarantee of privacy, thus the burden of protecting privacy typically falls on the individual Internet user.

Anonymity = Privacy