Government Spying Should Worry Marketers

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Marketers and business owners are often unfortunate “collateral damage” in the public and policy reaction to government surveillance in our personal, digital lives.  The trend is clear: Since July 2009 global government requests for Google users' information have more than doubled, reaching 25,879 requests in the first half of 2013, according to the company's latest transparency report.  In that time the U.S. government requests have more than tripled to 10,918 requests.

The majority of requests are subpoenas and warrants—each of which has unique legal authority. The Google report breaks down the requests into categories: wiretaps, pen registers, and disclosures made in connection with life-threatening emergencies. In the full report on U.S. requests Google explains the legal authority behind each kind of order. In most cases the company cites the Electronic Communications Privacy Act (ECPA), a law that's currently being considered for updates in Congress.

Google's related blog post emphasizes what the company wants to share, but can't. 

“We want to go even further. We believe it's your right to know what kinds of requests and how many each government is making of us and other companies. However, the U.S. Department of Justice contends that U.S. law does not allow us to share information about some national security requests that we might receive. Specifically, the U.S. government argues that we cannot share information about the requests we receive (if any) under the Foreign Intelligence Surveillance Act (FISA). But you deserve to know,” the blog reads.

This seems to be more than a volume game.  The report suggests that law enforcement is relying more heavily on its ability to force companies to turn over information—with or without a warrant. 

Aside from the implications for FISA court reform , what does this have to do with business? Two things: the need to separate responsible use of marketing data from government spying in the minds of consumers and policy makers, as well as the need to ensure that current regulation is updated to meet modern business needs.

1. All too often in our national conversation about privacy, responsible data-driven marketing practices are lumped in with government spying or illegal uses of data. We must stay vigilant in our efforts to educate consumers and policy makers on the difference. Data used for marketing purposes provides huge value to consumers (think free hotel rooms from your loyalty program or free access to leading journalism), as well as to the economy. A recent report from the Data-Driven Marketing Institute found that responsible data-driven marketing data—including the flow of data between companies—is a $156 billion industry.  Without this education and vigilance, there is a very real risk that the responsible use of marketing data will be regulated and limited. Imagine the cost to your business if you could no longer use individual-level consumer data.  That—and a $156 billion economy—is what's at stake.

2.The law meant to safeguard electronic communications from government surveillance is woefully out of date. Enacted in 1986, ECPA was created to stop federal agents from extracting electronic information from digital sources without a warrant.  Specifically, the law says that federal investigators need a warrant to access email, whether the message is in transit or stored on a server.  The catch: You don't need a warrant if the email is more than 180 days old.

This worked just fine in 1986, before the age of free Internet-based email services and cloud-based storage. Back then the idea of keeping emails for more than 180 days sounded crazy. ECPA was meant to protect electronic communications. But as technology evolved, it became a massive, gaping loophole for law enforcement.  It's time to close the gap. Google, other big technology players, and the DMA have been working with Congress to have this law updated to safeguard the responsible use of data and protect user privacy. DMA is forming a new Data Protection Alliance to give industry participants a collective voice on these issues.

  Stephanie Miller is VP of member relations and chief listening officer at the Direct Marketing Association. She is a relentless customer advocate and a champion for marketers creating memorable online experiences.  A digital marketing expert, she helps responsible data-driven marketers connect with the people, resources, and ideas they need to optimize response and revenue.
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