The House Subcommittee on Telecommunications and the Internet is investigating whether the use of NebuAD user-tracking technology violates wiretap and privacy laws, and at least one law is being crafted that would force carriers to make such systems opt in. As part of that investigation, last week Embarq received a letter from Congress, asking pointed questions about the ISP's trial of NebuAD technology.

Behavioral advertising is about "empowering individual and business internet users by making their experience more accessible and relevant." -Embarq

An Embarq spokesperson e-mailed me their response letter (pdf) this morning. The letter starts off on a disingenuous foot, by insisting that the selling of user browsing data for profit is actually about "empowering individual and business internet users by making their experience more accessible and relevant." Cable operator Charter also insisted it enhanced the "user experience."

The letter goes on to suggest that use of such systems "supports the provision of services to online customers at free or reduced rates." Interesting, considering I've yet to see a free or reduced rate NebuAD funded ISP. In fact, consumers see absolutely no price reduction from the estimated $2 per user, per month ISPs stand to make by selling user browser histories to NebuAD.

The letter fails to answer Congress's inquiry concerning exactly how many users were impacted, and in what markets. Embarq repeatedly insists that all collected data was anonymous (for whatever good such promises usually do), and admits their method of alerting consumers to the trial was by including new fine print in the Embarq privacy policy.

According to Embarq, that's enough to adhere to the FTC's privacy guidelines, though of course the FTC has increasingly believed that allowing companies to do whatever they'd like (aka: self-regulation) is a substitute for sound consumer protection policy. For those interested, you can catch a glimmer of the FTC's mindset on such issues in this interview with the FTC bureau of consumer protection in yesterday's NY Times.

Given Embarq doesn't pony up any real specifics, it's unlikely their response is going to satiate Markey, Dingell and Barton. Markey will still probably push to make such systems opt-in, but I continue to have doubts he'll be able to best the combined lobbying influence of the nation's largest ISPs and the entire online advertising industry (including Google), who won't want an "opt in" mandate impacting their own business models.