At the recent Boalt conference on spyware (where unfortunately absent were academicians and spyware superstars Ben Edelman and Eric Howes), Eric Goldman gave a presentation on spyware. Goldman, who teaches technology law at Marquette, is a player when it comes to the crossroads of law and technology.
One of our spyware researchers made these notes after reading Goldman’s presentation:
“1) He hasn’t got any new solutions, beyond a faith in the market and the theory that market mechanisms *should* work to compel adware vendors to offer something of value to users. Note that this faith and theory stand in opposition to five years of empirical experience with advertising software and the way that software has actually been developed and deployed.
2) Goldman seems to assume to contextual advertising can be collapsed into contextual searching — that the two are the same. In fact, they are not. Contextual advertising has largely been driven by the interests of advertisers; contextual searching that would be of real use to users need not follow the adware model.
Goldman’s real mistake is conflating a particular functionality (contextual delivery of content) with a particular business model (contextual advertising software, i.e., adware). In other words, there’s no reason to think that contextual searching would follow the adware model, and every reason to believe that it wouldn’t follow the adware model, because the ultimate question is to what ends the information taken from monitoring of user preferences/behavior is put? Will that data be used to serve the interests of advertisers, or will it be used to serve the interests of users. And, yes, there is a difference — it’s the same difference as well see between the regular search results in Google (which are user-driven) and “Sponsored Links” (which are advertiser-driven).
3) Goldman’s dismissal of notice/choice/consent is of concern. He’s right that endless pop-up boxes would ultimately be self-defeating. But he draws the wrong conclusion from this. If users are demanding more notice about certain functionality in software, that’s a good indication that the functionality is objectionable, and the ultimate solution isn’t to deny them such notice — it’s to strictly control or even eliminate the software that has such functionality, not let it persist in the blind, misguided hope that the purveyors of such software will somehow reform their practices and software when they’ve given every indication of moving in the precise opposite direction.
Unfortunately, Goldman doesn’t have anything to offer beyond more of the same, and he can’t offer any empirically grounded reasons for believing that his market-based future would be any different from our experience with market-based non-solutions over the past 5 years (since adware first emerged on the internet).”