Medical Privacy: The Challenge of Behavioral Ad Targeting in Healthcare

The latest
piece in the medical privacy jigsaw puzzle is online behavioral
advertising.

Last week, the Federal Trade Commission
(FTC) received comments from the Network Advertising
Initiative NAI
on the agency’s proposed principles for OBA. As part
of this filing, the NAI has published in draft its own
approach to behavioral ad targeting in health, included in the Self-Regulatory Code of Conduct for
Online Behavioral
Advertising

Online
behavioral advertising OBA
is the process whereby the online consumer’s search behavior is
analyzed across multiple websites and then categorized for use in
advertising online.

NAI’s members are reputed to cover 95% of
the online advertising market. NAI’s
membership includes 24/7 Real Media, Acerno, Advertising.com (an AOL company),
AlmondNet,
Atlas (a Microsoft company), BlueLithium (a Yahoo! Company), Doubleclick
(a Google company), Media6degrees, Mindset Media, Revenue Science, Safecount,
Specific Media, Tacoda (an AOL company), and
Yahoo!. Furthermore, NAI is
processing membership applications from Undertone Networks, Google and
Microsoft.

Toward the end
of the NAI’s
Code you will find a section called, “The need for common understanding
by industry,” in which the NAI
lists the “minimum restricted and sensitive consumer segments” that
online advertisers should avoid targeting.

The list includes:

1. Certain
medical/health conditions–
A. HIV/ AIDS status
B. Sexually-related conditions (e.g., sexually transmitted diseases,
erectile dysfunction)
C. Psychiatric conditions
D. Cancer status
E. Abortion-related.

2. Certain
personal life information–
A. Sexual behavior/orientation/identity (i.e.,
Lesbian/Gay/Bisexual/Transgender)
B. Criminal victim status (e.g., rape victim status).

The NAI
goes on to list other “potentially restrictive or sensitive” areas such
as addictions, disability, and philosophical beliefs, among personal
characteristics.

The NAI offers
the value proposition for behavioral ad targeting as follows:

Advertising
is fundamental to the accessibility, affordability and dynamism of the
Internet. Online advertising underwrites the rich variety of online
content choices available to consumers at no cost or at a far lower
cost than would otherwise be possible – similar to what we see in
television and radio.  More relevant advertising
creates a win-win for both consumers and companies, because consumers find more of what interests them and companies spend
less on ineffective advertising.

Jane’s
Hot Points: The NAI recognizes in its self-policing
guidelines that, with respect to behavioral ad targeting, health is
something different than, say, information on autos, fashion, or coin
collecting. The organization concedes that,

“self imposed
constraints help achieve the balance needed to preserve consumer
confidence…Even where there is reduced privacy impact in use of
anonymous or anonymized
data, the NAI
recognizes that consumers will only trust and continue to engage with
advertisers online when there is appropriate deference shown to
consumers’ concerns about the privacy of their web-surfing experience.”

Some
health care citizens will want to opt-in to receive relevant ads and
information; some won’t. Some of these citizens who choose to opt-in
will be people managing HIV and AIDS and depression and breast cancer;
some will be caregivers. People are already taking advantage of Web 2.0
tools, on their own terms, in managing their and their loved
ones’ health.

However, our
own terms are predicated on transparency and trust and a
comprehensive approach. The NAI’s list of sensitive and restricted
medical areas reads fragmented and ripe for parsing.

A useful
model for data protection and search engines was adopted by the
European Union on 4 April 2023 which could be a good precedent for the
FTC to consider.

The NAI is
calling for comments to their draft principles. You can review details
and leave comments for the NAI here.

- Jane Sarasohn-Kahn