EPIC Letter Seeking Clarification on New
America Online Privacy Policy
July 25, 1997
George Vradenburg, III
Senior Vice President & General Counsel
America Online, Inc.
1101 Connecticut Avenue, N.W.
Suite 400
Washington, DC 20036Dear Mr. Vradenburg:
Thank you for providing me with a copy of your memorandum to the Multistate Attorney General Task Force concerning America Online's marketing practices, in which you note your willingness "to clarify ... our internal business policies when those policies implicate broader public policy issues." While I appreciate your effort to explain AOL's policies with respect to the disclosure of subscriber telephone numbers, another aspect of the company's revised "Terms of Service" ("TOS") raises additional questions that require clarification.
Section 5.C. of the revised TOS provides:
NAVIGATIONAL AND TRANSACTIONAL INFORMATION.
(i) Collection. We may collect and store certain navigational and transactional information, such as data on the choices you make from the range of available services or merchandise, and the times and ways you use AOL and the Internet.
(ii) Use. AOL, Inc. uses navigational and transactional information to personalize AOL, for programming and editorial research and to offer special opportunities to our Members. For example, we use this information to understand our Members reactions to menu items, Content, services and merchandise offered through AOL and to customize AOL based on our Members interests. AOL, Inc. may use publicly available third-party data (demographic information, areas of interest, etc.) to assist us in our programming, editorial research and to offer special opportunities to our Members.
(iii) Disclosure. AOL, Inc. will not disclose to third parties navigational or transactional information (e.g., where you go or what you buy on or through AOL), except to comply with applicable law or valid legal process (e.g., search warrant or court order). While AOL, Inc. may use such information as criteria for developing Member lists for companies with which AOL, Inc. has a contractual marketing and online relationship (referenced in Section B(iii) above), AOL, Inc. does not disclose to any third-party, including the list recipient, which profiling information was used to develop the list.
I interpret this provision as authorizing AOL to use subscriber "navigational" and "transactional" information to create targeted marketing lists that will be made available to third parties with whom AOL "has a contractual marketing and online relationship." While I believe that interpretation to be rather apparent from the language of the revised TOS, the remarks of a company spokeswoman in today's online edition of USA TODAY raise some doubt as to the meaning of the new policy. The relevant excerpt follows:
The changes, posted July 1 but never pointed out to members as they logged on, suggest AOL might sell marketing lists based on data AOL collects about what members do and buy on AOL and on the Web.
"The average AOL user conducts their AOL activities believing they are doing it privately and anonymously, and if you read the fine print you learn that is probably not the case," Sobel says. ...
But [AOL spokeswoman Tricia] Primrose says AOL uses data about members' on-line activities only to customize the service. "We do not and will not provide" such navigational and transactional data for marketing purposes. She says the revisions Sobel referred to "are written far too broadly, and will be changed."
I would appreciate any clarification on this matter that you can provide, as well as a description of the changes to the TOS to which Ms. Primrose alluded.
Thank you again for your assistance and cooperation.
Sincerely,
David L. Sobel
Legal Counsel