Don’t Get Crossed Up With Cross-Device Tracking
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The document discusses cross-device tracking in digital advertising, emphasizing the importance of transparency and consumer control through self-regulatory principles established by entities like the Digital Advertising Alliance (DAA) and the Network Advertising Initiative (NAI). It highlights legal considerations, enforcement actions by the FTC, and specific case studies addressing privacy and consumer rights in tracking practices. Legislative measures aimed at enhancing consumer privacy, such as the 'Do Not Track Online Act' and the Illinois Right to Know Act, are also addressed.
Don’t Get Crossed Up With Cross-Device Tracking
- 1. MediaPost’s Programmatic Insider Summit DON'T GET CROSSED UP WITH CROSS- DEVICE TRACKING Monday, April 24, 2017 Gary A. Kibel Partner Digital Media, Technology & Privacy 212.468.4918 gkibel@dglaw.com @GaryKibel © 2017 Davis & Gilbert LLP
- 2. 1 »Digital Advertising Alliance (DAA) »Network Advertising Initiative (NAI) »Federal Trade Commission (FTC) »Legislation »B2B contracts »Q&A CROSS-DEVICE TRACKING Don’t Get Crossed Up With Cross-Device Tracking
- 3. »The Digital Advertising Alliance (DAA) is a consortium of the leading national advertising and marketing trade groups who together deliver effective, self-regulatory solutions to online consumer issues THE DIGITAL ADVERTISING ALLIANCE (DAA) WWW.ABOUTADS.INFO Don’t Get Crossed Up With Cross-Device Tracking2
- 4. 3 Social Media and the Law DAA MEMBERS
- 5. SELF-REGULATORY PRINCIPLES FOR ONLINE BEHAVIORAL ADVERTISING »Seven principles - Education - Transparency - Consumer Control - Data Security - Material Changes - Sensitive Data - Accountability Don’t Get Crossed Up With Cross-Device Tracking4
- 6. SELF-REGULATORY PRINCIPLES FOR ONLINE BEHAVIORAL ADVERTISING »Key requirements - Enhanced notice on ads - Notice on websites with data collection - Third party liability - Statement of adherence - Enforcement (name and shame) Don’t Get Crossed Up With Cross-Device Tracking5
- 7. DIGITAL ADVERTISING ALLIANCE »Principles - Self-Regulatory Principles for Online Behavioral Advertising - Self-Regulatory Principles for Multi-Site Data - Application of Self-Regulatory Principles to the Mobile Environment - Application of DAA Principles of Transparency and Control to Data Used Across Devices »More: eDAA, Digital Advertising Alliance of Canada Don’t Get Crossed Up With Cross-Device Tracking6
- 8. APPLICATION OF SELF-REGULATORY PRINCIPLES TO THE MOBILE ENVIRONMENT »Precise Location Data »Cross-App Data »Personal Directory Data Don’t Get Crossed Up With Cross-Device Tracking7
- 9. CROSS-DEVICE TRACKING Don’t Get Crossed Up With Cross-Device Tracking8
- 10. DAA – DATA USED ACROSS DEVICES 1. Transparency and 2. Consumer Control “on the browser or device on which choice is being exercised…” Don’t Get Crossed Up With Cross-Device Tracking9
- 12. NETWORK ADVERTISING INITIATIVE »Network Advertising Initiative - NAI Code of Conduct - NAI Mobile Application Code - Guidance on the Use of Non-Cookie Technologies for Interest-Based Advertising Don’t Get Crossed Up With Cross-Device Tracking11
- 14. CROSS-DEVICE TRACKING STAFF REPORT (JANUARY 2017) »Recommendations - Transparency - Choice - Sensitive information - Reasonable security »Benefits - Seamless user experience - Fraud detection and account security - Better online experience 13 Don’t Get Crossed Up With Cross-Device Tracking
- 15. CROSS-DEVICE TRACKING STAFF REPORT (JANUARY 2017) »Focus on first parties »Offline and online data »DAA definition of sensitive information is unduly narrow »Probabilistic targeting “might be less apparent to consumers” »Companies don’t discuss cross-device tracking in their privacy policies (3 out of 100 policies reviewed mentioned it) »Relevant enforcement actions: Epic Marketplace; ScanScout; Turn; InMobi »DAA device-by-device opt-out vs. single opt-out 14 Don’t Get Crossed Up With Cross-Device Tracking
- 16. FEDERAL TRADE COMMISSION ACT SECTION 5 »“Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.” - Deception = Misrepresentations or omissions likely to mislead consumers acting reasonably under the circumstances - Unfairness = Causes or is likely to cause substantial consumer injury, not reasonably avoided by the consumer, and not outweighed by countervailing benefits to consumers or competition 15 Don’t Get Crossed Up With Cross-Device Tracking
- 17. FTC – IN THE MATTER OF SCANSCOUT, INC. (DECEMBER 2011) »Video ad network »ScanScout privacy policy – “You can opt-out of receiving a cookie by changing your browser settings to prevent the receipt of cookies.” »However, changing browser settings did not remove or block the Flash cookies used by ScanScout »Deception claim 16 Don’t Get Crossed Up With Cross-Device Tracking
- 18. FTC – IN THE MATTER OF NOMI TECHNOLOGIES, INC. (APRIL 2015) »In-store beacon technology »Nomi privacy policy – “Nomi pledges to ... Always allow consumers to opt-out of Nomi’s service on its website as well as at any retailer using Nomi’s technology.” »FTC – “It’s vital that companies keep their privacy promises to consumers when working with emerging technologies, just as it is in any other context. If you tell a consumer that they will have choices about their privacy, you should make sure all of those choices are actually available to them.” 17 Don’t Get Crossed Up With Cross-Device Tracking
- 19. FTC VS. TURN (DECEMBER 2016) »Turn worked with telco to sync a unique ID with the cookies and device identifiers of users, even those who had exercised the choice to turn off tracking »Turn’s privacy policy stated that consumers could turn off tracking »Policy did not disclose this type of tracking Don’t Get Crossed Up With Cross-Device Tracking18
- 20. MASSACHUSETTS V. COPELY ADVERTISING (APRIL 2017) »Geofencing project »Copely targeted ads to “abortion-minded women” while in waiting rooms a health clinics. »Tagged device IDs when near certain locations for up to 30 days. »Sensitive data issues »Consent issues Don’t Get Crossed Up With Cross-Device Tracking19
- 21. LEGISLATIVE – “DO NOT TRACK ONLINE ACT OF 2015” »Do Not Track Online Act - Proposed in 2015 by Senators Markey and Blumenthal - Allows individuals to simply and easily indicate a preference not to have online activities tracked or personal information collected by online providers (limited exceptions) - Prohibits certain uses of personal information - Allows FTC to pursue civil penalties if consumer requests are not honored Don’t Get Crossed Up With Cross-Device Tracking20
- 22. ILLINOIS (RIGHT TO KNOW ACT – 2017) »“Consumers must be more than vaguely informed that a business might share personal information with third parties” »Privacy policy - Must identify the categories of PII collected, the categories of third parties with whom PII is shared; and a description of the customer’s rights to request information »Within 30 days of a consumer’s request, an operator must disclose all categories of PII disclosed and the names of all third parties that received the PII »Oh, by the way … there’s a private right of action! Don’t Get Crossed Up With Cross-Device Tracking21
- 23. B2B CONTRACTS »MSAs; IOs; SOWs »Client contracts »Vendor contracts »Media contracts »Obligation to make disclosures »Obligation to manage opt-outs »Compliance with standards »Liability »B2C – Privacy policy 22 Don’t Get Crossed Up With Cross-Device Tracking
- 24. QUESTIONS To receive D&G Digital Media Alerts, email: gkibel@dglaw.com Gary A. Kibel Partner Digital Media, Technology & Privacy 212.468.4918 gkibel@dglaw.com @GaryKibel © 2017 Davis & Gilbert LLP