Popping up less

Pop-up purveyor Claria is attempting to recast its image and move away from the pop-up game. Currently, Claria’s GAIN software monitors the behavior of internet users who have installed the software, either intentionally or inadvertently and uses that clickstream data to trigger pop-up ads in the GAIN application that appear over or under third party websites. Web publishers are, not surprisingly, less than enamored of the practice, and a number have sued Claria (formerly called Gator.com) claiming violations of copyright, trademark and unfair competition laws. Claria has settled most of these cases, though two are still pending.
Today in the NY Times, Bob Tedeschi reports that Claria is introducing a new service that should give the company a better relationship with online publishers: Pop-Up Company Tries a New Path

The service, called BehaviorLink, will operate much like Claria’s existing approach in that it will track the surfing patterns of some 40 million Internet users who downloaded free music-sharing software from Kazaa or other free programs like weather-tracking software from Claria.
But under the new program, Claria will use this information to buy ads on publisher sites, rather than use pop-ups.

Claria will likely enjoy better relationships with online publishers and probably lose its status as a magnet for litigation. However, individual internet users who are concerned about online privacy should be wary of this program. Currently, people who have GAIN installed on their computers are made aware of that by the number of pop-up ads which annoy them while surfing the web. With BehaviorLink, internet users who have GAIN installed on their system may have less notice that their online behavior is being monitored (as part of a measure of aggregate online behavior– Claria claims to not track individually identifiable information.) Because many users are not aware they installed GAIN, either because they do not read the 5900-word license agreement or because a third-party installs it as part of a “drive-by download,” many may have their online behavior watched without their knowledge.
Because Claria now is less likely to be target for lawsuits by online publishers as it becomes an ad broker rather than a pop-up purveyor, only legislation is likely to force the company to engage in better disclosure.
The SPY Act ,introduced in the House this session as HR 29, would require notice and consent prior to installation of software than transmits clickstream data in order to “deliver advertising to, or display advertising on, the computer.” The notice must notify users about such practices by using the statement: “This program will collect information about Web pages you access and will use information to display advertising on your computer. Do you accept?”
If adware stops delivering pop-up ads, a clear notice and consent requirement may be the most efficient way for internet users to learn that their net activity is being watched. See Clickwrap Licenses and Informed Consent for a more detailed examination of the need for informed consent in adware installation procedures.