FTC Complaint Filed Over AskEraser: “Unfair & Deceptive”

Photo adapted
from one by Hans
Engel

Some felt Ask.com won the
privacy oneupmanship
that went on last year when it rolled out
Ask Eraser, a tool
promising to stop recording any information about someone doing a search. But
questions quickly came up, including whether the tool helped at all, considering
that query data was still being sent to Ask’s paid listings partner, Google. A
privacy group complained
to Ask last month, and now Wired reports that it and others have filed a formal
complaint with the US government.

Ask.com’s Privacy Tool Tracks Users, Groups Tell Feds covers how the
Electronic Privacy Information Center along with
other groups such as Center For Digital Democracy and Consumer Action have asked
the US Federal Trade Commission to rule on whether Ask is using unfair and
deceptive trade practices in marketing its tool. From a summary on the EPIC home
page (they’ve yet to post a standalone press release):

EPIC and five other groups filed a complaint with the Federal Trade
Commission alleging that Ask.com is engaging in unfair and deceptive trade
practices with the representations concerning AskEraser, a search service that
purports to protect privacy. Among the critical points highlighted by the
consumer privacy coalition:

(1) users must accept an AskEraser cookie and disable a genuine privacy
feature in browsers that block cookies
(2) the AskEraser cookie is a unique persistent identifier that makes it easy
for Ask.com, its business partners, and the government to track the activities
of AskEraser users; and
(3) Ask.com will disable the search delete feature — the central purpose of
the Ask Eraser service — without notice to the user.

The complaint follows a December letter (pdf) to Ask.com describing these
security and privacy problems.

The actual complaint can be found
here (PDF),
and the initial letter to Ask
here (PDF).

On the first issue, it seems difficult to fault Ask that in order to ensure
someone wants their search history to be immediately deleted, they need to know
who that person is —
ironically through a cookie. As long as Ask is actually deleting the
information within minutes or hours as advertised, that seems pretty acceptable.

In particular, privacy groups have pushed for data destruction as a way to
ensure privacy. What’s not kept can’t be leaked. Unless there’s a real paranoia
that a few hours’ worth of searches would slip out, it seems like Ask ought to be
praised rather than battered.

Saying that Ask is disabling a "genuine privacy feature" goes a bit far. In
particular, the complaint says:

A typical privacy feature in a software browser is the option not to accept
a cookie. Ask.com requires users to disable this privacy feature so that the
AskEraser cookie will be stored on the user’s computer.

To my knowledge, few people block all cookies. But let’s say you did. Then
when you went to Ask, while your computer wouldn’t be tagged, your IP address
(which some groups find sensitive enough) would still be logged. And if you’re
in a corporate environment, you might have the same IP address all the time.
Enabling AskEraser is supposed to delete your IP address — and last time I
looked, a good browser would allow you to selectively allow a cookie from a
particular site, if you wanted.

As for the second item — scary, the government can track you! Yes, they can
track that you (or at least a computer with a particular cookie) has requested
that data be regularly destroyed. But as I said, as long as that data is indeed
being destroyed, no harm, no foul.

Unfortunately, Ask’s problem is that the data might NOT be destroyed. That’s
where point three comes in. If there’s an error — or if there’s a legal request
— Ask might switch AskEraser back on. Ask
discloses this
in its FAQ, so I’m not sure the FTC will find that the company is being
deceptive. Perhaps Ask could be clearer. AskEraser users might have AskEraser
turned off if there’s a legal request AND that legal request prevents Ask from
informing the user. It’s hard to fault a company as deceptive if there’s a legal
compulsion forcing it to do something.

Far more worrying to me are other points not itemized in the summary but
which come up in the complaint — in particular the third-party sharing.
From the
AskEraser FAQ:

What about data collected by third-party partners?
When enabled, AskEraser will delete your search activity from Ask.com servers.
We cannot delete your search activity from the servers of third-party
companies that receive your search queries to provide you with certain aspects
of our search results (for example, current weather conditions, stock market
summaries, etc.), sponsored search results and other product features.

The complaint says about this:

a) AskEraser does not prevent or regulate the collection and use of
searches conducted on Ask.com by third-party advertising companies, which may
use a third-party cookie to gather information about the Ask.com user.
Therefore, information gathered on one site may be used for targeted
advertising on another site. A limited and rather burdensome option exists to
prevent certain advertising companies from using their cookies to obtain
search results. To achieve this, the user has to go to another site and
individually select and disable the companies that the user does not want to
receive advertising from. This option is not reasonable given that AskEraser
purports to protect the user’s privacy upon simply clicking and enabling the
AskEraser function.

b) Ask.com also shares information with third-party service providers. In
spite of AskEraser being enabled, the user’s search queries are kept on the
servers of third-party companies.

Those third parties include Google,
as we and
others
have noted.

Ask.com Puts a Bet on Privacy from the New York Times had this comment on
that from Ask:

Ask.com relies on Google to deliver many of the ads that appear next to its
search results. Under an agreement between the two companies, Ask.com will
continue to pass query information on to Google. Mr. Leeds acknowledged that
AskEraser cannot promise complete anonymity, but said it would greatly
increase privacy protections for users who want them, as Google is
contractually constrained in what it can do with that information. A Google
spokesman said the company uses the information to place relevant ads and to
fight certain online scams.

That’s a far bigger issue, and I’m surprised EPIC didn’t lead with that,
rather than the three other points that are easy to take apart. Someone engaging
AskEraser probably does not understand or expect that their query and IP
address, along with perhaps a unique cookie ID, is flowing over to Google so
that Ask can retrieve ads. And they are not reasonably expecting they have to go
to Google or another partner to try and delete information there (if they can —
they probably can’t).

That’s the big flaw with AskEraser. The complaint also notes that those using
the Ask toolbar won’t get AskEraser protection, even if enabled. On that point,
I think the FAQ is clear enough.

In terms of demands, the complaint wants AskEraser removed entirely and that
if it returns, that Ask find another way to implement it. In particular, it
wants opt-in cookies. The thought seems to be that anyone coming to Ask should
always be asked if they want a cookie, so that perhaps people are more aware
they’ll get a cookie when they install AskEraser. It also demands that all
search data be destroyed. All. Not just those of AskEraser users (virtually all
of whom should have the data already removed, if the system works as promised).
And going back before AskEraser existed, to boot. Seems extreme, especially when
Ask has already pledged
to destroy data more than 18 months old for everyone.

Overall, while I may seem critical of EPIC and gang for being extreme, if not
picky, on some points, make no mistake — I applaud them for pushing on the issue
if only for the third party sharing. That’s a serious concern, a serious flaw in
what searchers may think they’re getting — but don’t get — in terms of privacy
protection.