FTC Report Reinforces the Rules for Cross-Device Tracking

by Morrison & Foerster LLP - Social Media
Contact

Well over a year after holding a workshop addressing privacy issues associated with cross-device tracking, Federal Trade Commission (FTC) staff have issued a report. The report sets the stage by describing how cross-device tracking works, noting its “benefits and challenges,” and reviewing (and largely commending) current industry self-regulatory efforts.

The report also makes recommendations, which—while building upon the staff’s traditional themes of transparency and choice—do not introduce any materially new suggestions for compliance.

The staff’s recommendations do not have the force of law, but they do indicate the steps that the staff believes a company should take in order to avoid a charge of unfairness or deception under Section 5 of the FTC Act.

A Quick Review of Cross-Device Tracking

As more consumers utilize multiple devices in their daily lives, more and more companies are using new technologies to attempt to ascertain that multiple devices are connected to the same person. This is generally done through the use of either deterministic information (e.g., by recognizing a user through the log-in credentials he or she uses across different devices) or probabilistic information (i.e., by inferring that multiple devices are used by the same person based on information about the devices, such as IP address, location, and activities on the devices).

As the FTC staff note in the report, cross-device tracking provides many benefits. For instance, it enables a seamless experience for users across their devices and can also help improve fraud detection by identifying devices not previously associated with a known user.

Moreover, cross-device tracking facilitates a better online advertising experience by, among other things, more effectively targeting advertisements to users. The practice also, however, raises privacy concerns because it may not be adequately disclosed to consumers, and consumers may not be able to readily control it.

State of Play

In response to earlier FTC statements on the privacy issues raised by cross-device tracking, industry expanded the existing interest-based advertising (IBA) self-regulatory regime to specifically address cross-device tracking. Enforcement of the Digital Advertising Alliance (DAA) cross-device tracking principles began on February 1, 2017.

These principles apply the DAA’s IBA self-regulatory notice-and-choice regime to cross-device tracking if browsing activity on one device is used to deliver ads on another device. In such scenarios, the DAA principles require that consumers be provided with a device-specific opt-out from both (1) the collection of data on the specific device in order to deliver IBA on other devices; and (2) the delivery of IBA on that device based on information collected from another device.

The Staff Report—Status Quo Preserved?

While the FTC staff report commends the IBA self-regulatory efforts of both the DAA and the Network Advertising Initiative, it also suggests that they could “strengthen their efforts.” Importantly, however, the report does not suggest changes to the notice and choice required by the DAA principles at this time. There had been some speculation that the staff might recommend that consumers be given a single way to opt out across all of their linked devices. It did not. Instead, staff acknowledged that current technological limitations would make it difficult to offer such a universal opt-out. The staff did suggest that companies “continue to reassess technical limitations and simplify consumer choices whenever possible.”

While not upsetting the current self-regulatory approach, the report, nonetheless, provides suggestions about how basic privacy principles can be adapted to cross-device tracking:

Transparency. The report recommends increased transparency and truthfulness, including about the types of data collected and how it is used and shared. Reinforcing statements by  former FTC Chairwoman Edith Ramirez (see here), the report states that personally identifiable information includes any information that can be reasonably linked to a consumer or a consumer’s device. The staff accordingly suggests that “companies that provide raw or hashed email addresses or usernames to cross-device tracking companies should refrain from referring to this data as anonymous or aggregate, and should be careful about making blanket statements to consumers stating that they do not share ‘personal information’ with third parties.”

Choice. Any opt-out that a company offers must be clear and effective. Moreover, its scope must be accurate and not misleading. For example, if an opt-out is effective only with respect to the device from which it is exercised, that fact should be clear from the opt-out instructions, and consumers should not be led to believe that the opt-out extends to all of their devices.

Opt-In for Sensitive Data. Consistent with the FTC’s overall approach to sensitive data, the report recommends that companies obtain express consent to collect four types of sensitive information: health, financial, precise geolocation, and children’s information. Companies are encouraged to take a broad approach in this regard, given the ease with which sensitive information may be pieced together from activity across devices. For example, the use of a diabetes-related mobile app or a visit to an AIDS education website could be tantamount to the collection of sensitive information.

Security. The report recommends that companies have reasonable security measures in place to avoid unauthorized access to and use of the personal information within their control. As part of this, and consistent with the FTC’s standard refrains regarding data minimization and deletion, the report recommends that companies keep only the information that is necessary for their business purposes.

Cross-device tracking is becoming more prevalent, and the FTC is paying attention. Companies involved in tracking and targeting users across devices should consider the report’s recommendations when designing or revisiting their compliance strategies.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP - Social Media | Attorney Advertising

Written by:

Morrison & Foerster LLP - Social Media
Contact
more
less

Morrison & Foerster LLP - Social Media on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.