For those of us who wonder how that Dream Vacation ad follows us from our initial Google® search on our PC to our subsequent iPad searches: the US Federal Trade Commission (FTC) Staff Cross-Device Tracking Report has some answers, as well as some advice. Released on January 23, 2017, the Report gives insight into legal issues presented by cross-device tracking, which associates multiple devices with the same consumer, and so links a consumer’s online activity across her various devices (such as smartphones, tablets, personal computers, and other connected devices). The FTC Staff Report is available here: https://www.ftc.gov/system/files/documents/reports/cross-device-tracking-federal-trade-commission-staff-report-january-2017/ftc_cross-device_tracking_report_1-23-17.pdf.
The purpose of the Report is to put industry on notice of the FTC’s views regarding data tracking and disclosure practices which could be deemed unfair or deceptive to consumers. In addition to bringing cases and investigations, the FTC periodically issues reports on specific topics to give companies guidance on developing issues, such as privacy and data security, and on issues that companies should consider to avoid unfair or deceptive practices, which are unlawful under Section 5 of the FTC Act. In the FTC Staff’s view, this technology has many benefits, but also poses a danger to a consumer’s privacy interests.
Among the benefits, cross-device tracking provides consumers with seamless transitions across their devices and facilitates targeted advertising. As the Report notes, however, consumers often are unaware of cross-device tracking, and they generally are provided with few ways to control the tracking. The Report accordingly advises advertisers, online publishers, technology companies and others engaged in cross-device tracking to apply traditional privacy principles of transparency, choice, and security to cross-tracking, and to afford consumers with clear notice of the tracking as well as ways to limit or opt out of tracking. Specifically, the report notes that prior FTC cases have established that a) it can be deceptive for companies to fail to adequately disclose the nature of their data collection activities, or its purposes – which brings to mind the cardinal rules of Privacy Policies: Say What You Do, and Do What You Say. The FTC staff report also outlined industry self-regulatory efforts to address cross-device tracking, and the exhorted self-regulatory groups, such as the Digital Advertising Alliance (DAI) and the Network Advertising Initiative (NAI), to continue, and even increase, their voluntary codes and standards for cross-tracking.
The FTC Staff Report concludes by encouraging entities involved in the various aspects of cross-device tracking to (1) truthfully disclose the tracking to consumers and business partners; (2) give consumers choices about whether and how their cross-device activity will be tracked, and honor opt-outs; (3) obtain consumers’ affirmative express consent before cross-device tracking on sensitive topics (including geo-location data); and (4) maintain reasonable security to prevent unauthorized uses of data.
Commissioner Maureen K. Ohlhausen – whom President Donald Trump has designated to serve as acting chair of the Federal Trade Commission– issued a concurring statement in which she noted that the FTC Staff Report on Cross-Device Tracking “does not alter the FTC’s longstanding privacy principles but simply discusses their application in the context of a new technology.” Her concurring statement is available here: https://www.ftc.gov/system/files/documents/reports/cross-device-tracking-federal-trade-commission-staff-report-january-2017/cross device_tracking_report_concurring_statement_of_commissioner_ohlhausen_1-23-17.pdf
While the FTC Staff Report on Cross-Device Tracking does not have the force of law, and is not binding precedent, it offers insights into the Staff’s views on this technology and on steps that those involved with it should take to avoid deception or unfair practices.