The Digital Advertising Alliance (DAA) recently announced that
self-regulatory enforcement of its cross-device guidance will begin
in February 2017. Accordingly, companies that engage in
cross-device tracking and targeting—including website and
mobile app publishers that allow third parties to collect
information for purposes of delivering ads to the same consumer
across multiple devices—should ensure that they comply with
the DAA's guidance. Failure to do so could result in an
Accountability Program enforcement action
beginning on February 1, 2017.
The DAA's cross-device guidance, titled "Application of the DAA Principles of Transparency
and Control to Data Used Across Devices," was originally
published in November 2015, on the same day that the Federal Trade
Commission (FTC) held a workshop on the topic. The DAA's guidance
outlines how its existing self-regulatory principles—which
historically have applied to the collection and use of information
on a particular browser or device—will now apply to
the collection and use of information from the same user across
multiple browsers or devices. In a nutshell, the DAA's
cross-device guidance requires that companies:
ensure that the choice made by
consumers under the existing Principles (e.g., the consumer choice
mechanism or "opt-out") prevents data collected from a
particular browser or device, on which the choice is exercised,
from being used on another computer or device (and vice versa) or
transferred to an unaffiliated third party for such purposes.
In practical terms, this requires both first parties (e.g.,
websites and mobile apps) and third parties (e.g., advertising
technology companies) to disclose cross-device tracking practices
in their privacy policies, as well as provide "enhanced
notice" of such practices through clear, meaningful, and
notice" may be provided by: (a) displaying the DAA's
"Advertising Options" icon in or around ads delivered
using cross-device tracking technology; (b) adding a clear and
conspicuous link titled "Ad Choices" on webpages where
information is collected or used for cross-device tracking
purposes; and/or (c) including a link to relevant cross-device
tracking disclosures from the mobile app stores and app settings
menu. The DAA's cross-device guidance also requires that the
opt-out choices made available to consumers for interest-based
advertising (such as through the DAA Consumer
Choice Page or DAA App Choices
tool) must also stop cross-device targeting on the device from
which the consumer opted out.
The DAA's announcement comes on the heels of several enforcement actions against mobile
app developers for alleged failures to comply with the DAA's
Mobile Guidance. The upcoming enforcement deadline on February 1,
2017, therefore serves as yet another reminder that companies
should think broadly about how they comply with privacy best
practices for online advertising in various contexts and across
platforms and devices.
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.
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This past summer, we wrote about two instances in which courts refused to enforce website terms presented in browsewrap agreements. As we noted, clickthrough agreements are generally more likely to be found to be enforced.
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