

Internet service provider Embarq eavesdropped on the web surfing habits of 26,000 customers in Kansas without notifying them personally, as part of its test of new, controversial advertising technology that profiles users, the company told federal lawmakers Wednesday.

Embarq, an offshoot from Sprint, tested the service in Gardner, Kansas, saying it was their smallest facility. The secret test ended earlier this year, though no dates were given for when it started or stopped. The letter also disclosed that 15 people from the region opted out, even though the company didn't notify the affected subscribers that the technology was being tested – it just added a paragraph to its privacy policy.

Telecom subcommittee head Reps. Edward Markey (D-Massachusetts), watchdog groups and law professors have questioned whether the technology violates federal privacy laws, including the wiretapping statute.

"While I am pleased that Embarq chose to answer our specific questions in their second letter, I am still troubled by the company's failure to directly inform their consumers of the consumer data gathering test and the notion that an 'opt-out' option is a sufficient standard for such sweeping data gathering," Markey said.

The letter (.pdf) comes just two days after the company attempted in a Monday letter to justify, rather than explain, the trialto powerful House Commerce members, who have already shown they are highly dubious of any ISP's plan to monitor its customers' web usage for profit. According to one congressional aide, the follow-up letter came after staff made it clear the first letter didn't suffice.

The three have already forced Charter Communications to cancel its proposed trial of ISP eavesdropping technology from a NebuAd, the same company that powered Embarq's secret test.

Charter, Embarq and NebuAd all say the technology is legal since they only classify web pages and web searches into categories such as "shopping for SUV" – rather than storing the webstream.

NebuAd pays ISPs to let it monitor user's web surfing and searching in order to classify their interests. Those profiles are then used to deliver targeted ads when the users visit NebuAd partner sites. Subscribers must choose to opt-out with each browser they use, though NebuAd won't explain how the opt-out works.

In the second letter, Embarq, a Fortune 500 telecom company, said it notified its subscribers by adding new information to its privacy policy, saying that's how traditional web advertisers do it.

Though the company again defended the test on legal grounds, the company clearly understood in the second letter that Congressmen John Dingell (D-Michigan), Joe Barton (R-Texas) and Markey were not pleased with the secret test or the company's first letter.

"In summary the brief test was concluded earlier this year, no customer data continues to exist, and we have no plans for more tests or for general deployment of this technology, until such time as privacy concerns have been addressed," CEO Tom Gerke wrote.

The technology partner NebuAd earlier referred questions about the test to Embarq, but had said that it always required its partners to notify individuals before using its technology.

Photo: Tim Samoff/flickr

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