In a new article posted this morning, Ben Edelman continues his investigation of high-profile companies clogging users' computers with junk. Today's target: InterActiveCorp's Ask.com, known for its widespread "smiley" toolbars.
Last year I blogged about Ask's various toolbars and the trinkets Ask uses to get users to install them. But Ben thinks there's a bigger problem here. So I sat him down for an interview.
Q: Ben, what's the big deal with Ask's toolbars?
A: The core problem is that users are being tricked into installing them, under false pretenses. Users are offered one thing, like "free smileys" or "top 10 cursors." Then users end up getting Ask's toolbar too.
Q: Is that really so bad? You're not claiming these are security exploit installs, like what you documented last year. Users actually consent to these installations, right? What's the problem?
A: The problem is that users' "consent" is obtained under false pretenses. Ask gets users' attention with the promise of free tidbits that some users do indeed want. Once it has their attention, it switches them over to something else -- namely, free tidbits plus a bundled toolbar.
Q: Sounds like the old bait-and-switch routine. Is that illegal?
A: Ask most folks, and they'll tell you no. It's all in the EULA, they'll say, so they think it's just fine. I want to push back on that a bit.
I've recently been rereading old FTC cases about unfair and deceptive trade practices. One that particularly caught my eye is Federal Trade Commission v. Encyclopaedia Britannica, Inc., 87 F.T.C. 421 (1976). Here's what happened. Britannica door-to-door salesmen had various ruses "to get in the door" into users' homes -- "door-opener" lines, they're called, because they get users to open the door and let the salesman in. Apparently the salesmen often made promises about free vacations and the like. It's thanks to these promises that consumers let them in.
Now, ultimately the salesmen revealed that actually they were there to sell encyclopedias, albeit with some chance of a free trip thrown in too. So the truth of the salesman's offer was made known prior to purchase. But the Britannica case holds that that's just not good enough. It's not enough for a salesman to talk his way in the front door with a deceptive opening line, planning to tell the truth later. An honest sales pitch can't begin with a false or misleading offer. Once a salesman uses such an offer to get a user's attention, there's no cleaning that up, however well the truth is disclosed later.
Q: That's most interesting. How does this apply to Internet advertising?
A: I think the analogy is actually remarkably direct. Ask's ads make promises like "free smileys." But Ask no more offers "free smileys" (with nothing more) than the Britannica salesman offers a "free vacation." To get (a chance at) a Britannica free trip, a customer apparently had to buy an encyclopedia set. Similarly, to get an Ask free smiley, a user must install Ask's toolbar. In both cases, the opening offer is materially misleading -- promising something that's just not available on the specified terms (a free vacation with nothing more, or free smileys with nothing more).
In both cases the truth is made known later: Ask ultimately does explain that users must accept its toolbar too. But as the Britannica case holds, that's not enough. The initial offer was so different from the resulting deal that the confusion can't be cured by a subsequent disclosure.
Q: Is there anything else wrong with Ask's approach?
Sure. I show Ask advertising its toolbars through other vendors' spyware, even after Ask specifically promised it had "cleaned up" its advertising practices. I show Ask's EULA link appearing off-screen, even after Ask specifically promised it fixed that too.
Q: What about the Ask toolbar itself? Is it worth installing?
No. I discourage users from running Ask's toolbars for two reasons. First, Ask moves the browser's Address Bar from top-left (where it is found in every browser I've ever seen) to top-right. Ask puts its own search box in the top-left. So Ask's software makes it highly likely that users will accidentally conduct searches when they intend simply to navigate to sites they request by name.
Second, Ask's toolbar leads to landing pages that are objectionable in their own right. Ask's landing pages show ten ads -- ten! -- above the first organic result. On a 800x600 screen, that means 2 full pages of ads, plus a little bit more after that, all before the first organic result. That's ridiculous. No user deserves that, especially since organic results are safer than sponsored links.
Q: Ben, do you have any big-picture thoughts?
A: Definitely. These "deceptive door openers" are remarkably widespread. Many online advertisers use these schemes to pull in unwary customers. "See what happens next in this video," invite several widespread banner ads, only to require users to give an email address or install software to actually see the rest of the video. That's materially different from what the ad specifies, and it's a rotten deal for consumers.
It's reassuring that our legal system already confronted this kind of tactic. These deceptive door opener cases were litigated before I was born, but they stand for a valuable consumer protection principle that withstands the test of time. Companies ought not begin their interaction with a prospective customer by making false statements, misleading statements, or statements with material omissions. That's a lesson Ask (among many others) ought to take to heart.
Ben, thanks for the interview.
The full article can be read here. There's also a video, made yesterday, showing a non-consensual installation of the Ask toolbar.