Electronic Monitoring and Privacy Issues in Business-Marketing: The Ethics of the DoubleClick Experience Author(s): Darren Charters Source: Journal of Business Ethics, Vol. 35, No. 4 (Feb., 2002), pp. 243-254 Published by: Springer Stable URL: http://www.jstor.org/stable/25074677 . Accessed: 06/08/2014 22:41 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. . Springer is collaborating with JSTOR to digitize, preserve and extend access to Journal of Business Ethics. http://www.jstor.org This content downloaded from 203.217.177.216 on Wed, 6 Aug 2014 22:41:05 PM All use subject to JSTOR Terms and Conditions
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Electronic Monitoring and Privacy Issues in Business-Marketing: The Ethics of theDoubleClick ExperienceAuthor(s): Darren ChartersSource: Journal of Business Ethics, Vol. 35, No. 4 (Feb., 2002), pp. 243-254Published by: SpringerStable URL: http://www.jstor.org/stable/25074677 .
Accessed: 06/08/2014 22:41
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp
.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].
.
Springer is collaborating with JSTOR to digitize, preserve and extend access to Journal of Business Ethics.
http://www.jstor.org
This content downloaded from 203.217.177.216 on Wed, 6 Aug 2014 22:41:05 PMAll use subject to JSTOR Terms and Conditions
Electronic Monitoring and Privacy Issues in Business-Marketing:
The Ethics of the DoubleClick
Experience Darren Charters
ABSTRACT. The paper examines the ethics of
electronic monitoring for advertising purposes and
the implications for Internet user privacy using as a
backdrop DoubleClick Inc's recent controversy over
matching previously anonymous user profiles with
personally identifiable information. It explores various
ethical theories that are applicable to understand
privacy issues in electronic monitoring. It is argued that, despite the fact that electronic monitoring always constitutes an invasion of privacy, it can still be
ethically justified on both Utilitarian and Kantian
grounds. From a Utilitarian perspective the emphasis must be on minimizing potential harms. From a
Kantian perspective the emphasis must be on giving users
complete information so that they can make
informed decisions as to whether they are willing to
be monitored. Considering the Internet advertising
industry's current actions, computer users and gov
ernment regulators would be well advised, both prac
tically and ethically, to move to a user control model
in electronic monitoring.
KEY WORDS: business marketing, computer ethics,
cookies, electronic monitoring, privacy
Darren Charters is a Lecturer in business law in the School
of Accountancy, University of Waterloo. He is a member
of the Law Society of Upper Canada and holds degrees in arts and law, as well as a graduate degree in business
administration. He has also practiced as a
corporate/
commercial lawyer.
If we wouldVe known we wouldn't have done it.
We moved into a grey area where there's a tremen
dous amount of confusion and that's not good.
We're a very innovative company and sometimes
you get ahead. We made a mistake.1
Mr. Kevin O'Connor
CEO DoubleClick Inc.
Introduction
Businesses have long been aware of the value
of targeted advertising. DoubleClick Inc.
(DoubleClick) is an advertising company that
operates in the Internet banner and pop-up
advertising business space. The ability to contin
ually tailor Internet advertising to the interests of
a user is an advance on previous advertising mediums and represents an opportunity to
develop a competitive advantage in the industry. Once trends are detected in a user's Internet
activity advertising can be customized to the
user's revealed interests.
A company such as DoubleClick sits between
the advertiser and the end user and acts as a facil
itator between companies who want to adver
tise to specific types of users and users who may be interested in receiving such advertising. End
users arguably benefit as they obtain the advan
tages of customized advertising content while the
receipt of unwanted advertising is minimized.
Until November 1999, DoubleClick had always tracked user activity by attaching user histories
to anonymous user identifications.2 Accordingly, while user activity could be tracked the actual
identity of the user was unknown. However, the
W Journal of Business Ethics 35: 243-254, 2002.
? 2002 Kluwer Academic Publishers. Printed in the Netherlands.
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of as personal information that is not part of the
public record and that most individuals in a
society at a given time would not want widely known (Boatright, 2000). This approach implies that this private sphere should generally remain
so notwithstanding an individual's casual will
ingness to surrender it. Also implicit in this
approach to privacy is the recognition that there
is, at any given point in time, some general com
munity consensus as to personal information
individuals would prefer not be available for
public consumption. The foregoing definition attempts to refine the
preceding concept of privacy by focusing on
what information is, or should be, included in
the private sphere. If a sphere of private infor
mation based on a general community consensus
could be ascertained then most, if not all, actions
that intrude on this sphere would be a violation
of the right to privacy. This concept also has
application to the electronic monitoring debate
in the sense that if Internet activity were deter
mined to be in the private realm, there would
be few situations in which electronic monitoring could be ethically justified.
However, as with the other theories of privacy, there are difficulties with this definition. First, even within a single cultural community people have very different understandings of what is or
is not private which makes the likelihood of
ascertaining a general consensus elusive. Second, external factors continually impact the ability to
invade privacy and as a result the concept is
necessarily fluid. For example, It is foreseeable
that many activities that were formerly public in
nature (i.e., shopping purchases etc.) will become
increasingly private as technology gives individ
uals the ability to carry out such activities in
relative privacy. The countervailing trend is that
even this activity is increasingly capable of being monitored. If it is acknowledged that the sphere of what is private is fluid, and can be expanded or contracted, than delineating a private sphere is a venture fraught with significant difficulty.
Ethical principles underlying the right to
privacy
As with most, if not all, moral and legal rights there is an ethical basis underpinning the right.
The right to privacy is no exception. It is built
on both Utilitarian and Kantian foundations:
i. Utilitarian foundation
The Utilitarian basis for acknowledging a right to privacy is two-fold (Boatright, 2000). First, there is the concern that the invasion of privacy can result in significant actual harm to individ
uals. To evaluate whether a practice is ethical in
Utilitarian terms, the harm realized is measured
against the benefit flowing from the activity. The
ethical evaluation is based on the collective
benefits and collective harm resulting to society,
although each is experienced at the individual
level. If the overall harm exceeds the overall
benefit then the practice is deemed to be
unethical.
In the context of electronic marketing the
potential harm results from the fact that the orga nization developing user profiles can accumulate
potentially sensitive information about a user,
based on his or her Internet activities.10 For
example, a gay individual may have elected
not to publicly disclose his or her sexual orien
tation. However, the same individual may, with
presumed anonymity, visit websites with gay content or participate as part of a gay Internet
community. A company that is able to electron
ically monitor the individual's computer use
could potentially gain intimate knowledge of the
individual's situation as a result of the Internet
sites the individual visited. The organization
developing the profile may intend to use such
information solely for the purpose of advertising, however it is not difficult to see the potential harm to the individual's practical interests if such
information came into the hands of another
party. Another example is potentially sensitive
medical condition that might be accessed by
employers doing pre-hiring checks or insurers
contemplating the issuance of a policy.11 Profile
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Electronic Monitoring and Privacy Issues in Business-Marketing 249
information generated by electronic monitoring has the potential to be used against the individ
uals in a manner that harms their personal prac tical interests.
Opponents of electronic marketing frequently dwell on potential harm but little mention is
made of an actual weighing of harms against benefits. The balancing in the electronic moni
toring context involves weighing potential serious harm to a limited number of people
against the marginal benefit, such as increased
convenience and knowledge of consumer
products, which might flow to many people from
such activity. If the total harm exceeds the total
benefit the invasion of privacy through electronic
monitoring cannot be considered ethical.
However, if it can be claimed that benefits
exceed harm the foundation exists for an ethical
invasion of privacy. The second utilitarian basis for acknowledging
a right to privacy is based on a wider concept of harm. As stated succinctly by Boatright, "a
certain amount of privacy is necessary for the
enjoyment of some activities, so that invasions
of privacy change the character of our experi ences and deprive us of the opportunity for
gaining pleasure from them" (Boatright, 2000,
p. 169). The "harm" resulting from the loss of
the ability to gain maximum pleasure is presumed to exceed any benefit, such as increased conve
nience in the electronic monitoring context,
such activity might have. A similar argument is
that invasions of privacy harm the development and maintenance of personal identity, and that
such harm exceeds all benefits (Boatright, 2000). There has been little reference to either of the
above arguments made by privacy advocates in
the electronic monitoring debate.
ii. Kantian foundation
The right to privacy can also be supported on
the basis of Kant's second categorical imperative. It provides that individuals should act in a
manner that treats other individuals as an end and
never as a means only (Boatright, 2000). This
imperative captures the themes that people
should be respected and treated as autonomous
individuals capable of rational choice. To quote
Stanley Benn:
Covert observation -
spying -
is objectionable
because it deliberately deceives a person about his
world, thwarting ... his attempts to make a
rational choice. One cannot be said to respect a
man ... if one knowingly and deliberately alters
his conditions of action, concealing the fact from
him (Boatright, 2000, p. 170).12
Arguments against electronic monitoring that are
premised on Kantianism base their position on
the argument that electronic monitoring violates
the principle of respect for individuals and pro hibits them from acting as autonomous beings
capable of rational choice.
To date, there has been little public opposition
expressed against electronic monitoring on the
foregoing basis. However, this is not surprising. In terms of generating public support against electronic monitoring, concerns over potential harm will have a greater mobilizing influence
than a more esoteric, albeit relevant, ethical
theory such as Kantianism. The fact that Kantian
theories supporting a right to privacy have not
been part of popular debate makes them no
less a valid basis on which to base an objection to, or alternatively support for, electronic
monitoring.
Privacy and ethical theories applied
i. Electronic monitoring and privacy
Reduced to its simplest form, electronic moni
toring as it is currently practiced amounts to
unauthorized observance. Many individuals using the Internet have no knowledge of when their
online activity is being monitored for the
purpose of developing an advertising profile. When discussing concepts of privacy theorists
have sometimes resorted to the analogy of one
individual watching another individual in a
shower without the showering individual's
knowledge or consent (McCloskey, 1980). Such
action is almost always considered an unethical
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Perspectives", Journal of Business Ethics 17(7), May 1998, pp. 729-743. 5
Information regarding Internet cookies is also
publicly available from a wide variety of Internet resources. The U.S. Department of Energy Computer
Incident Advisory Capability has published a bulletin on the topic "1-034: Internet Cookies". It is avail
able at http://ciac.llnl.gov/ciac/bulletins/i-034.shtm. 6 Green, H., "Privacy Online: The FTC Must Act
Now", Business Week, November 29, 1999, p. 48. 7
Telecommunications companies have the techno
logical capacity to develop personally identifiable user
profiles based on the phone activities of customers.
Such profiles also have commercial value from a
business marketing perspective. 8 A good example of the subversion of the right of
privacy in favor of a strong right is the U.S. West, Inc. v. FCC case. The FCC attempted to impose regula tory restrictions on the ability of U.S. telecommuni
cation companies to use, disclose, or allow access to
customer proprietary network information (CPNI). U.S. West mounted a successful legal challenge against
the regulatory obligations imposed by the FCC. The Tenth Circuit held that, absent any clear evidence of
harm to an individual's right of privacy through the use of CPNI, the right of commercial speech pos sessed by corporate entities should be paramount. 9
Reproduced from Parent, "Privacy Morality and the Law", Philosophy and Public Affairs 12 (1983),
p. 269. 10
Julie Tuan in "US. West, Inc. v. FCC", Berkeley
Technology Law Journal 15 (2000), p. 353 discusses similar issues of privacy in her criticism of the Tenth
Circuit's decision. 11
The Interactive Advertising Bureau (IAB) has
attempted to address the collection, use, and redistri
bution of sensitive information in its Privacy Guidelines. However, the guidelines on this point are
poorly drafted containing both permissive and manda
tory language. Ultimately, the guidelines suffer from even more fundamental flaws that are discussed herein. 12
Reproduced from Benn, S., "Privacy, Freedom,
and Respect For Persons", in Pennock and Chapman, eds., Privacy, pp. 10-11.
13 Such a position was taken by Heather Green in
the commentary "Privacy Online: The FTC Must Act Now" wherein she discussed her concerns about
the DoubleClick proposal prior to the statements of the Electronic Privacy Information Center.
References
Alder, G. S.: 1998, 'Ethical Issues in Electronic
Performance Monitoring: A Consideration of
Deontological and Teleological Perspectives', Journal of Business Ethics 17(7) (May), 729-743.
Boatright, M.: 2000, 'Privacy', Ethics and the Conduct
of Business, 3rd ed. (Prentice-Hall, Saddle River New Jersey), pp. 159-183.
Culver, C, J. Moor, W. Duerfeldt, M. Kapp and M. Sullivan: 1994, 'Privacy', Professional Ethics
3(3 & 4), 3-25.
Green, H.: 1999, 'Privacy Online - The FTC Must
Act Now', Business Week, No. 3657 (Nov. 29), 48.
Introna, L. and A. Pouloudi: 1999, 'Privacy in the
Information Age: Stakeholders, Interests and
Values', The Journal of Business Ethics 22(1), 27-38.
McCloskey, H.: 1980, 'Privacy and the Right to
Privacy', Philosophy 55(211), 17-38.
Tuan, J.: 2000, 'U.S. West, Inc. v. FCC, Berkeley
Technology Law Journal 15, 353.
'1-034: Internet Cookies.' U.S. Department of Energy Computer Incident Advisory Capability. 1998.