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DEEPLINKS BLOG

Newspapers’ Complaint to Consumer Agency Shouldn’t Lead to Bans on Privacy Software

June 6, 2016

In an attack on ad-blocking software, the Newspaper Association of America filed a complaint with the Federal Trade Commission last week, asking the agency to ban a variety of functions, including “evading metered subscription systems and paywalls,” and ad substitution. NAA also called into question new business models that aim to replace online advertising. Newspapers are concerned about the effects that ad-blockers may have on their revenues and their ability to understand and market to their readership. But some of what NAA is asking for would threaten important and widely used privacy software, like Tor and EFF’s own Privacy Badger, and chip away at Internet users’ ability to control their own browsing experience.

NAA’s call to ban software that enables users to evade metered subscription systems and paywalls is the most worrisome. Regardless of the reason or effect, users should be able to employ software that provides anonymity from one website visit to the next. NAA complains that:

[m]any publishers allow readers to sample high-quality content on a limited basis (e.g., 10 articles per month) and then present the reader with a subscription offer (either for digital-only or print-bundled plans). Some ad-blockers evade metered subscription services and paywalls by preventing publishers from identifying repeat visitors and making offers to consumers about their subscription services . . . By preventing publishers from identifying repeat visitors and making these offers to them, content blockers harm consumers.

Internet users have many legitimate reasons to stop websites from tracking them across multiple visits. That’s why most modern browsers include a “private” or “incognito” mode. It’s also one of the important features of the Tor network, which is designed to allow for anonymous Internet use over time.

Outlawing privacy-enhancing software simply because it might interfere with the operation of some newspapers’ metered paywalls would be profoundly anti-consumer. The FTC, which puts considerable resources into enhancing consumer privacy and encouraging the development of new privacy tools, would depart from its mission if it agreed to NAA’s request.

Personal privacy concerns multiply when third parties affiliated with a website, such as ad networks, can track a single user across visits to different sites and build a detailed profile of that user’s activities and preferences. That’s why EFF’s Privacy Badger blocks a variety of third-party tracking mechanisms that can be included within a webpage. Although Privacy Badger probably doesn't interfere with the first-party "metered subscription services" in use on the websites of major US newspapers today, a new rule that outlaws efforts to avoid user tracking over time would put all browser-based privacy efforts at risk.

NAA is also asking federal regulators to ban “ad substitution” and to stop ad-blocking companies from advertising new business models for Web content, such as the subscription and micropayment services that Brave Software, Optimal, and Flattr have proposed as a replacement for ads.

NAA alleges that ad substitution is deceptive when companies entice users with a promise of “higher quality” ads, without disclosing what “higher quality” means or that they generate revenue from the replacement ads. NAA is also concerned that “consumers will reasonably misinterpret [replacement ads] as being the editorial voice of publishers whose ads have been blocked and replaced.” A browser plugin that alters the appearance of webpages in ways that users don’t understand or consent to could be just as abusive as an ad network that profits from the surreptitious collection of users’ personal information and browsing habits. But software that changes the way pages are displayed at the user’s request, and with the user’s informed consent, should be protected and encouraged. As EFF wrote back in 2005, “when I visit your website, and you send me a page in response, I should be able to do whatever I like to manipulate it on my end. Display it in purple, suppress images, block pop-ups, compare prices from other vendors, whatever.” Concern for the publisher’s “editorial voice” doesn’t justify taking away users’ ability to control their own browsing experience.

Finally, NAA claims that ad-blockers’ subscription and micropayment models are deceptive for consumers because these companies “falsely imply that payments made by consumers will make publishers whole,” that is, such payments will “offset the funds lost to blocked advertising.” It's reasonable and expected that the FTC will take action against statements that deceive consumers, but NAA's examples may not rise to that level.

The FTC should curb practices that deceive users with sneaky and unwanted changes to the Web experience, whether done by ad-blockers, ad networks, or others. But in so doing, the FTC must be careful not to take autonomy and control away from Internet users. Banning anonymous browsing or ad replacement, or preemptively regulating alternative models for monetizing Web publishing, would not respect user autonomy. These would send a message that website publishers, not users, should control the browser. Preemptive FTC action could also stifle thoughtful attempts to create alternatives to the advertising-driven Web, where users’ personal information is the main product on offer and incentives to violate user privacy are strong. Ad-blockers and tools like Privacy Badger put pressure on publishers and ad networks to deliver high-quality ads and avoid violations of user privacy. The FTC needs to proceed with extreme caution here to target truly deceptive and abusive practices without interfering with Internet users’ ability to protect their privacy, control their browsing experience, and be active participants in online innovation.

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