United States: Commission Examines Privacy And Cybersecurity Issues Associated With Emerging Cross-Device Tracking Technology

On Monday, November 16, the Federal Trade Commission (FTC) held a workshop that examined the key privacy and security issues raised by emerging technologies that track users across their various devices, such as smartphones, tablets, desktops, TVs and other Internet-connected devices. The outcome of the workshop has potentially broad implications for any company that provides websites, apps and online services to consumers, since cross-device technologies are increasingly being used to personalize content, improve targeting, provide security and fraud prevention, and perform analytics and attribution functions.
 
As companies integrate cross-device capabilities into their online products and services, the FTC's workshop will serve as an important guide. In addition, we expect that the FTC will issue a staff report that outlines key issues and best practices for cross-device tracking in the future. The FTC has invited companies to submit public comments on the topic by December 16, 2015.

What is Cross-Device Tracking?

A key goal of the workshop was to establish a baseline understanding of what constitutes cross-device tracking. Cross-device technologies often use a combination of "probabilistic" and "deterministic" methods to infer connections among consumers' various devices, such as smartphones, tablets, desktops, TVs and other Internet-connected devices. For example:

  • Probabilistic Linking. Probabilistic methods collect and use device attributes (such as device IDs, IP address, time/date, etc.) to determine the statistical likelihood that browsers or devices are shared by the same user or household.  
  • Deterministic Linking. Deterministic methods use authenticated connections—such as through account logins or hashed email addresses—to link devices and provide a high level of confidence that devices are shared by the same user.

After a company establishes connections between devices, they often store that information in a "device graph" that may, in some instances, be shared with third parties. Panelists at the workshop noted that other technologies may be used to provide cross-device capabilities (such as "audio beacons" that use audio signals to establish connections), although alternative technologies do not appear to be widely used at this time. Cross-device technologies differ substantially across the industry, and workshop participants noted that it can be difficult for consumers to detect whether and what cross-device technologies are being used on any particular website or mobile app.

Key Privacy Issues Raised by FTC Chairwoman Edith Ramirez

FTC Chairwoman Edith Ramirez opened the workshop by highlighting some of the key issues raised by cross-device tracking technologies. Although many of her concerns are similar to those related to online and mobile tracking in general, Chairwoman Ramirez emphasized that cross-device technology adds a layer of complexity that magnifies existing privacy concerns. In particular, the Chairwoman focused on the following challenges:

  • Transparency. Chairwoman Ramirez noted that cross-device technology raises new transparency concerns because companies may collect and use information in new ways that are often difficult for consumers to detect. She also expressed concern that consumers may not understand how their cross-device data may be used, especially if it is used for potentially sensitive or discriminatory purposes.  
  • Meaningful Choice. She also explained that concerns about transparency may be exacerbated by a lack of meaningful choice for users. For example, she noted that consumers are not always adequately informed or educated regarding their opt-out choices.  
  • Data Minimization and Security. Chairwoman Ramirez also suggested that other privacy principles may apply to cross-device technology, such as data minimization, accountability and data security. In particular, she expressed the view that companies should not retain data longer than necessary to achieve its purposes.

Chairwoman Ramirez called on companies to "rise to the challenge of fostering technological solutions to inform consumers, offer choices, and honor those choices." She highlighted the role of self-regulatory organizations such as the Digital Advertising Alliance (DAA) and Network Advertising Initiative (NAI) in developing standards to provide transparency and choice to users, while also noting that the FTC "will continue to monitor the marketplace and take action as needed."

Technological and Policy Perspectives on Cross-Device Tracking

The remainder of the workshop consisted of two panels moderated by FTC staff, which examined the technological and policy perspectives on cross-device tracking. The panels included representatives from self-regulatory organizations, consumer advocacy groups and academic researchers. The panelists largely viewed cross-device tracking as a natural evolution from existing practices, and therefore that existing FTC guidance and self-regulatory codes may offer valuable notice-and-choice frameworks. Nonetheless, several themes did emerge that focused on how cross-device technology may differ from existing technologies and present unique privacy and security issues for consumers.
 
Challenges to Consumer Transparency
 
There was general agreement among panelists that transparency is a key issue. As with any new technology, panelists expressed concern that consumers may be unaware of the cross-device technologies that companies use to collect information about users. One panelist noted that the traditional "silos" that consumers may rely on to separate their online and mobile experiences—for example between personal and business life—may no longer meaningfully distinguish a user's online activities.
 
In response to questions about the steps that the industry is taking to improve consumer transparency, representatives from the NAI and DAA emphasized that they have released industry guidance and provided technical solutions to help companies provide notice and choice to consumers. For example, the DAA unveiled new guidance on Monday that is titled the Application of the Self-Regulatory Principles of Transparency and Control to Data Used Across Devices. Among other things, the new guidance requires first- and third-parties to comply with enhanced notice requirements under the existing DAA Principles and to inform users of cross-device practices and choices in their privacy policies.
 
Scope of Consumer Choice
 
Panelists also focused on the choices that are available to consumers with respect to cross-device technologies. There was agreement that consumers should be able to choose how their information is collected and used across devices. However, there was considerable disagreement regarding the scope of any opt-out provided and the means that would be used to effectuate that choice.
 
For example, the DAA's recent guidance requires that companies extend user opt-outs only to the device from which a consumer has opted out (e.g., no data from that device may be used on other devices, and vice versa). However, some panelists suggested that opt-outs should extend to all devices that the company reasonably believes are associated with the device from which a consumer has opted out, to the extent possible. The FTC did not signal a preference for a single-device or multiple-device opt-out. Instead, the FTC staff suggested that key considerations likely would be whether a company has: (1) clearly disclosed the means through which a consumer may opt out and the effect that such a choice would have on the company's collection, use and sharing of information about that user; and (2) that the company follow through with its disclosures, so that they are accurate.
 
Role and Sensitivity of Personally Identifiable Information
 
The panelists also considered the privacy and security risks that arise when companies collect and share hashed email addresses during the process of establishing authenticated connections among devices. Ashkan Soltani, Chief Technologist at the FTC, asked several questions that signaled that the FTC may consider the extent to which technical measures (e.g., hashing) protect users against the unlawful use or disclosure of information. For example, the FTC may consider the strength of any hashing algorithm, the retention period of hashed email addresses, and the contractual restrictions in place to prohibit re-identification and further disclosure of hashed personally identifiable information (PII).
 
Although panelists disagreed over the benefits of hashing PII, Jurgen Van Staden, the Director of Policy at the NAI, explained that hashing nonetheless provides some key protections. In addition, he noted that the NAI Code of Conduct requires procedural and contractual protections designed to prevent re-identification of hashed email addresses. Justin Brookman, Policy Director for the Office of Technology Research and Investigation at the FTC, suggested that perhaps the traditional distinction between PII and non-PII is less relevant now, given the potential capabilities to re-identify individuals.
 
Data Retention and Data Minimization

 
The panelists also discussed the technical solutions that could be used to improve consumer privacy and security. While there was disagreement over the risks that are associated with the collection of information across devices, the panelists seemed to agree that one of the most basic solutions to reduce risk is to discard information after it is no longer needed for its intended purpose. Some panelists pointed out that recent data breaches have not been motivated by purely economic motives, and therefore data retention, data minimization and data security are important issues in the collection and use of cross-device technology.
 
Potential Misuse of Cross-Device Data
 
Finally, the panelists generally agreed that companies should not use cross-device technology to target sensitive categories of individuals without opt-in consent or engage in discriminatory practices. Nonetheless, there was disagreement as to how those sensitive categories or uses should be defined. For example, one panelist believed that nearly any type of price discrimination should be prohibited, but other panelists noted that individual pricing offers were not necessarily harmful to consumers. These issues likely will need to be developed over time with the participation of the FTC and self-regulatory organizations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Frankfurt Kurnit Klein & Selz
Sheppard Mullin Richter & Hampton
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Frankfurt Kurnit Klein & Selz
Sheppard Mullin Richter & Hampton
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions