Usually, when people talk about the trade offs between privacy and freedom of the press, the argument is about whether the public has the right to know some fact about an individual’s personal life.
The newspaper industry is now arguing that the First Amendment protects its right to follow users around the Internet so it can charge higher prices on advertising.
This argument was made in a filing by Newspaper Association of America commenting on the Federal Trade Commission’s proposal that the companies involved in advertising that uses what is called behavioral targeting create a self-regulatory code that limits their use of sensitive information.
Many newspaper sites, including nytimes.com, participate in behavioral targeting networks such as those run by AOL’s Tacoda or Revenue Science. These sites hope that by finding out which of their readers are shopping for cars or other products, they can raise rates for sections that don’t have natural advertisers, like international news.
The association argued that this sort of advertising technology is needed to pay for the local information and other content that newspapers provide free online. That is similar to many of the other comments that challenged the commission’s ideas. But the newspaper group went further and suggested that restrictions on advertising technology are tantamount to unconstitutional censorship.
Efforts to restrict or limit what newspaper websites publish, and the basis by which editors and advertisers make decisions regarding what to publish, run directly counter to core First Amendment rights, and can amount to a form of prior restraint.
The filing did acknowledge that government can regulate the content of deceptive advertising, but it argued that behavioral targeting is hardly misleading.
While it is possible that an advertiser message accompanying the publisher’s fully protected speech might be deemed false or misleading, no connection between behavioral targeting and falsity or misleadingness has been demonstrated. Quite the reverse: the purported concern is that users may receive not only truthful advertising speech, but advertising speech that meets their interest. That is not fraud or deceptionâ€”that is customer service.