The Consumer Right to Privacy vs. Our Right to Not be Tracked

I have officially watched C-SPAN 3 the last few days more than at any other point in my life combined. The subject, Mark Zuckerberg taking questions from the United States Senate. In the vast majority of industry or executive presentations, I give I always start with a point about the times we live in being unprecedented when it comes to technology industry history. It seems the examples I have to support this point are many, but the current situation Facebook finds itself in is no exception. Facebook, every nation, and every consumer now face a philosophical fork in the road. The question is less to a consumer’s right to privacy; it seems no one disagrees that is a right, the question is, do we have the right not to be tracked?

Unprecedented Amounts of Consumer Data
There is a reason Facebook and Google have become the advertising juggernauts they are today. They have collected mountains user behavior data, mostly behind the scenes by tracking those consumers behavior in depth when they are on their service and even when they aren’t using their services. In fact, I would venture a highly educated guess that if consumers had any idea how much they were being tracked online by Facebook, and Google to a degree, they would be shocked and probably angry. In a recent study our team at Creative Strategies, Inc conducted on Facebook (which Carolina Milanesi dove into yestereday), we asked US consumers a range of sentiment questions. To this point of Facebook’s ability to track us, 53% of respondents check the answer option “I am not entirely comfortable with how good Facebook has become at tracking my online activity.”

Now, as consumers who engage in a free service with the understanding, we will see ads, I think the high-level philosophical point is how much data should the free service be allowed to gather on its users? Facebook would argue they need/want as much as necessary to provide a better advertising experience. I’ll acknowledge his point, and agree that if we have to suffer through ads, they may as well be relevant. So I suppose the bigger question is how much data is necessary for Facebook to provide me a relevant ad? The reality is it is probably a lot less than Facebook is gathering on its users today.

Here we have some precedent set by the EU with the GDPR. At a high-level, the GDPR is an effort to limit the amount of data collected on consumers and not make opting in to “more than the absolute bare minimum” of information to still receive the free service. The language focuses on simply saying “data that is absolutely necessary to run the service.” This is a phrase in question I think it is worth exploring in this situation. Because it seems that it can be interpreted many different ways.

For example, could Facebook or Google say that knowing my location at any given time is necessary to run the service? Could Facebook say that knowing my browsing history is necessary to run the service? It seems the logical answer to this is certainly no but only when we define Facebook or Google’s services narrowly. Google could say, well to effectively run a search and give a consumer the desired and relevant response we need to know the user’s location, browsing history, places they have been, things they like, etc. Similarly, Facebook could say we need to know things you talk about in private messages, all your likes and dislikes (whether you clicked a like button or not), and a host of other data point collected behind the scenes to effectively run the Facebook service.

The main takeaway is that it is true that both Facebook and Google will be a better service, and make that service better over time, the more data they have on you. This truth conveniently lines up with their business model because while all of that data collected does make their service better for the end user, it also makes it better for the advertiser. Both Facebook and Google have collected significantly more data by “snooping” on its users to give advertisers the ability to hyper-target specific customers. The big question in my mind is should this be allowed in the first place?

Opting In
What I think is necessary, is a more clear understanding of the behind the scenes, non-public actions, of what Facebook collects. Then Facebook and Google for that matter ask the consumer if it is Ok they track their location, read their emails and messages, observe their browsing history, etc., and give consumers the ability to opt-in or opt-out. The can freely explain that by opting into these things the services and ads will be more relevant and interesting, but the choice should be given to the customer to know how much data they are giving to Facebook and Google and decide if that is something they want to do. Today, there is little transparency over the behind the scenes, non-public behavior tracking of Facebook and Google’s users and that is the biggest change I think needs to come.

The basic consumer right to privacy, which everyone agrees with, needs to include the right not to be tracked beyond what the consumer consciously agrees to. Now the public behavior, the one Mark Zuckerberg kept using as an example in his questioning with the Senate and Congress, was that Facebook collects information on things you have liked, disliked, photos you post, etc. Things were done that are consciously public on the service seem like fair game. If I like a brand or product page, or post, or comment, I consciously know this is done in public for all to see. It’s perfectly acceptable for Facebook to use that information to get to know me better. This is why every time Mark Zuckerberg was asked about the amount of data collected by Facebook that was not done in public he dodged the question and just said “I will check with my team and get back to you.”

I don’t believe regulating Facebook is the answer. If anything, I’d rather see an act like something along the California Privacy Act, or something like it, get passed that forces companies to be more transparent about what data they collect and provide options to opt-out of those collection efforts. In general, we may need regulation to enforce simply how much data can be collected on consumers in the first place. The advertising industry thrived for decades without the ability to hyper-target consumers like Facebook and Google offer. A basic consumer profile has worked for decades, and it can work going forward.

The California Privacy act may be a good start, but it may need to go farther. We may need the government to put laws in place that shelter parts of consumers lives and online behavior and simply say these things are off limits for companies like Facebook and Google to collect data. I appreciate the tagline of the California Privacy Act which says “your life is not their business.” This is exactly right, and I would add that I’m ok with my interests being their business but not the minutia of my life and online activity. We have a long way to go, and as I said, we are in unprecedented times.

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Ben Bajarin

Ben Bajarin is a Principal Analyst and the head of primary research at Creative Strategies, Inc - An industry analysis, market intelligence and research firm located in Silicon Valley. His primary focus is consumer technology and market trend research and he is responsible for studying over 30 countries. Full Bio

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