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Facebook's critics 'unrealistic', says US privacy law expert

Demands 'commercially impossible' to enact

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The expectations and demands of privacy activists are unrealistic and uncommercial, according to one of America's top privacy law academics. Lobbyists for privacy rights should be more pragmatic and cooperate with companies, he said.

Privacy advocates this week wrote to social networking giant Facebook in the latest of a long line of criticisms of its privacy policies. The Electronic Frontier Foundation (EFF), the ACLU of Northern California, and the Center for Democracy and Technology (CDT) complained in an open letter (pdf) to the company that it did not do enough to protect the personal information people post to the site.

Such demands will never be successful, though, because they run so counter to the business interests of companies, Chris Jay Hoofnagle told podcast OUT-LAW Radio. Hoofnagle was speaking before that letter was made public.

Hoofnagle is director of the Berkeley Center for Law and Technology's information privacy programs and senior fellow to the Samuelson Law, Technology & Public Policy Clinic.

"The privacy advocates have been less than pragmatic on these issues and they're calling for interventions that I don't think will protect privacy," he said, speaking of criticisms expressed by various organisations in recent months. "[They also] might be commercially impossible to put into play."

The privacy groups this week urged Facebook to make many of its features opt-in only, so that users had to actively choose them.

"The answer can't be opt in," said Hoofnagle. "Let's say [US consumer regulator] the Federal Trade Commission says we're going to create this opt in rule, companies will simply require people to opt in to see any content."

Hoofnagle has published widely on privacy law and the internet. He told OUT-LAW Radio that the very basis of the action of many privacy advocates is wrong, and that he backs a very simple solution to the privacy problem.

"If I could do anything now I would simply create a ceiling on how long advertising data would be kept, something like three months," he said. "It would cause advertisers to have to compete under that ceiling, whoever could do the best targeting with just three months of data.

"It would eliminate the civil liberties concerns because companies would have to erase the click-stream after a short amount of time. And the other benefit is that it wouldn't require the consumers to do anything," he said.

User data is valuable to website publishers such as Facebook because it allows them to sell more expensive advertising space to companies which will use the gathered data to try to match adverts to users based on their activity and supposed demographic profile.

But Hoofnagle said that advertisers had told regulators in the US that they did not need lots of historic data to make online advertising work.

"The FTC received a lot of testimony in recent years … and behavioural advertisers came forth and said that the most accurate data is the live data, it's the thing you're doing now," he said. "That really indicates your what your purchasing intent is. Historical data isn't as useful.

"A number of advertisers … said that any data that was older than a month was worthless for targetting," he said.

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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