Privacy Law and Online Advertising: Legal Analysis of Data Gathering by Online Advertisers Such as Double Click and NebuAd [January 16, 2009] [open pdf - 235KB]
"To produce revenue, websites have placed advertisements on their sites. Advertisers will pay a premium for greater assurance that the advertisement they are purchasing will be seen by users that are most likely to be interested in the product or service offered. As a result, technology has been developed which enables online advertisements to be targeted directly at individual users based on their web surfing activity. This practice is widely known as 'behavioral' or 'e-havioral' advertising. This individual behavioral targeting has raised a number of privacy concerns. For instance, questions have been asked whether personally identifiable information is being collected; how the information collected is being protected; and whether current laws are being violated if data are being collected without the consent of the parties involved. It is often unclear whether current laws, such as the Electronic Communications Privacy Act and the Communications Act, apply to online advertising providers that are collecting data through click tracking, capturing search terms, and other methods. However, it is likely that in many cases these laws could be held to apply to such activities and that these methods of data collection would be forbidden unless consent is obtained from one of the parties to the communication. This report will examine the application of these statutes to online behavioral advertising in more detail."
CRS Report for Congress, RL34693