De week van the Hague security delta, privacyplannen en Conway’s game of Tetris

Tear down the tracking wall

Onze buren doen niet zo geheimzinnig
DOSSIER / Europese privacyregels

It has become a daily routine: consenting to being tracked before you’re allowed access to a website or online service. It’s about time to set limits to this tracking rat race.

Credits:
Photo: ktanaka

No access without tracking

An ever-growing portion of our personal and professional communication, our news consumption and our contact with government, is mediated through the internet. Access to online information and services is crucial to participating in today's society. Yet, on a daily basis we are forced to allow ourselves to be tracked – from one website or app to another, and across several devices – before we’re given access to information or digital services.

Cookie walls

The infamous cookie walls you encounter when visiting websites are a prime example of this. If you want to get beyond that wall, you first have to consent to having your online behaviour minutely tracked. To be clear, we are not talking about the cookies that are necessary to, for example, store your settings or for gathering stats on the use of your website in a privacy friendly manner. We are talking about all those trackers that usually originate from completely different parties than the website you intended to visit, and that continue to track your behavior across the internet.

Issues with tracking

Tracking raises many concerns. First of all, while we become more transparent, a lot of the current practices, and the parties employing them, are highly opaque. We are unaware how much of our activity online is registered, analysed and used, by how many different parties and for what purposes.

Second of all, the information collected through trackers makes us susceptible to manipulation. This can have serious consequences for the power (im)balances between citizens and consumers on the one hand and governments, corporations and other organisations that have access to this data on the other. Just think of the instrumental role tracking plays in micro-targeted political advertising, price discrimination or exploiting the cognitive biases and specific weaknesses of individual users.

Do we accept that we are forced to be digitally undressed, analysed and influenced by an opaque industry?

Third, the data gathered through tracking is increasingly used for making decisions about us. For example, the answer to whether you have access to credit and under what terms may depend on such data. This often happens under the cloak of long terms full of legalese you consented to which provide you no meaningful transparency. And even if you are aware that data about you is being used for making automated decisions, it is hard to challenge the inaccuracy of such decisions or the data they rely on.

Race to the bottom

The main engine behind the widespread tracking of our online behaviour is its use for advertising purposes. It is no secret that many providers of online services depend on advertising revenues. Initially, online advertising worked pretty much the same way as offline advertising: advertisements were context-specific and not micro-targeted based on your activity. An example of the former is adjusting the advertisement depending on the content where it is shown.

But over the last ten years we have seen the steady rise of targeted advertising, leading to a continuous expansion of tracking users’ online activity in as much detail as possible. Together with the automation of the online advertising market this has led to a race to the bottom and a push back by users. The increasing popularity of ad blockers and other technical tools to fight off trackers are clear signs of users being fed up with constantly being tracked, their mobile data plans wasted on intrusive advertisements and their security undermined by malvertising.

Graph from the Internet Trends 2017 report from Kleiner Perkins

Advertisers are also dissatisfied with the current state of affairs. It is telling that Procter & Gamble, one of the world's largest advertisers, is cutting backProcter & Gamble is very critical of the current state of affairs of online advertising substantially on digital ads. And Apple’s new operating system for its phones and tablets includes an anti-tracking featureApple uses a method called 'intelligent tracking prevention' to limit the tracking of its users.

In our daily lives it is often a choice between limited or no access at all, or subjecting yourself to tracking.

But these developments are only part of the solution. You can agree or disagree with the advertising business model of gathering your attention and reselling it, but that is not the issue we want to address here. As Tim Wu convincingly argues in his latest book “The Attention Merchants”Read an interview with Tim Wu about his book and the history of advertising, we really have to consider how far the ad industry is allowed to go. After all, not everything is allowed in the race for our attention. For example, many countries regulate and some even prohibit advertisements that are aimed at children, and we would find it unacceptable if nature reserves or government buildings would be full of billboards.

The question we should ask ourselves is: do we accept that we are forced to be digitally undressed, analysed and influenced by an opaque industry? We think not, and a large majority of European citizens agree with us.

Eurobarometer 443 on e-Privacy, July 2016

No forced tracking

An often heard response is that you are free to withhold your consent to being tracked. That is correct in theory, but much harder in the real world. In our daily lives it is often a choice between limited or no access at all, or subjecting yourself to tracking. This is particularly problematic when the information or services you would like to access are provided by public institutions or organisations that play an important role in society and that you therefore cannot simply avoid.

Think for instance of public institutions such as the Tax Administration, but also hospitals, health insurance companies, banks or internet access providers. By making access to their services conditional on your consent to being tracked, your consent becomes involuntary and essentially meaningless. This practice has to stop.

Will the rights of internet users be safeguarded and will we get a digital environment free from opaque tracking practices?

It would be much better to have clear limits. As a user you should be able to gather information and use services without being forced to consent to being tracked. Luckily, this is already the case in the Netherlands This is the result of Article 11.7a (5) of the Dutch Telecommunications Actfor government services such as the Tax Administration. But this should also be the case for publicly financed institutions and organisations that play an important role in our society. And why shouldn’t we take it one step further and put an end to tracking walls for all the online information and services that we use?

What will Brussels do?

At this very moment, European institutions in Brussels are working on an overhaul of specific privacy rules for electronic communications. Who is permitted to read your messages, are tracking walls allowed and may your phone be used to map your physical location without your consent? These are some of the important questions these new rules adress. They will have a substantial impact on all internet users across the EU.

This overhaul of the rules offers an excellent opportunity to tear down tracking walls for all of Europe. We Together with our colleagues at EDRi, we worked on a position paper and several amendments to improve the Commission proposal.are not the only ones advocating for this. The data protection authorities in Europe also recommendThe Article 29 Working Party comes to this conclusion in its Opinion on ePrivacy to put an end to this practice. This fall the European Parliament will vote on the new rules proposed by the European Commission and the hundreds of amendments that have been submitted by different MEPs. Some of these amendments would put an end to tracking walls, while others make the proposed rules toothless. Will the rights of internet users be safeguarded and will we get a digital environment free from opaque tracking practices? We challenge our representatives in Brussels to answer this question with a firm yes by voting accordingly.

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