Embarq pressured by politicians over NebuAd

Three House members who have questioned the concept of Web monitoring to display relevant ads are questioning DSL provider Embarq. Their concern: Why not require customers to opt in?

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
2 min read

A trio of politicians in the U.S. House of Representatives is continuing a campaign against the concept of Web monitoring to display advertisements, most recently with a series of letters this week exchanged with broadband provider Embarq.

Embarq provides Internet connectivity to about 1.3 million subscribers, making it the fourth-largest DSL provider in the country. It has acknowledged experimenting earlier this year with NebuAd, which intercepts and performs deep packet inspection of what's flowing through a company's network in hopes of delivering relevant, anonymized ads.

In two letters (No. 1, and No. 2) to the House trio, Embarq defended the legality of its test of NebuAd: "It has always been Embarq's belief that its conduct of the test was lawful and otherwise permissible." The three members of Congress are House Energy and Commerce Chairman John Dingell, a Democrat; Joe Barton, a Republican; Ed Markey, a Democrat and chairman of an Internet subcommittee.

The test involved 26,000 broadband subscribers and was based in Gardner, Kansas. Embarq subscribers were not given a written notice in the mail permitting them to opt out; instead, the only notification they received was a modification to the privacy policy saying "the Web sites that you visit or online searches that you conduct" may be used to "deliver or facilitate the delivery of targeted advertisements." Only 15 subscribers opted out of the test.

Embarq said that it believes its "brief" test was consistent with current online advertising business models, and the Federal Trade Commission's voluntary best practices framework.

Last week, Markey convened a hearing in which politicians assailed NebuAd for alleged privacy violations, calling its opt-out practices "contemptible" and in violation of "everything the country's been founded on." Around the same time, he and the others had asked Embarq to answer a series of questions. Another NebuAd-testing company that had been pressured by Markey, cable operator Charter Communications, announced last month that it was suspending use of the technology.

Making matters complicated is that the legality of the type of monitoring that NebuAd does is not entirely clear; intercepting customers' communications as they flow through the network begins to look a lot like wiretapping.

The Electronic Communications Privacy Act of 1986 (ECPA); the Communications Act of 1934; and the Cable TV Privacy Act of 1984 all may apply. Cable providers may need to obtain affirmative opt-in consent from customers, putting them at a competitive disadvantage to, say, AT&T and Verizon. State wiretapping laws also may apply.

For its part, NebuAd has posted a legal memo designed to defuse those criticisms. It argues that the 1986 changes to wiretap law have not been clarified by courts, and that the Cable Act may not apply to "any record of aggregate data which does not identify particular persons."