Behavioral marketing is hot and here to stay, but there is a 'disconnect' between the way regulators think about privacy and the way business thinks of privacy, according to D. Reed Freeman, chief privacy officer, vice president-legislative and regulatory affairs, Claria Corp. Addressing attendees at the Jupiter Advertising Forum on Thursday, Freeman argued that -- while behavioral marketing is 'wildly effective' in increasing the value of publishers' properties -- online publishers, third party vendors, and others should expect more enforcement because consumers are complaining about the lack of clear disclosure in the use of personal and non-personal data.

'There are two Americas,' Freeman quipped, in reference to a phrase used often in speeches by Democratic Vice Presidential candidate John Edwards. 'There's government and there's business.' And where issues regarding who owns consumer data arise, the government cares about who has the information whether it's publishers, businesses, or third- parties. Freeman set out the legal and regulatory framework of pertinent issues where behavioral marketing is concerned.

Freeman said there are three types of tracking that the government cares about: tracking of site users by Web site publishers; tracking by third-parties, vendors, and consultants; and tracking of consumers by third-parties that have relationships only with those consumers, not Web sites. 'The government thinks you can't just bury things in a privacy policy,' Freeman said. 'If a consumer would be surprised, it needs to be lifted from a privacy policy.' Policies and procedures must be 'clear and conspicuous' and not hidden; they must be unavoidable before a consumer hits the button.

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