Advertising Law Blog

Meanwhile, agencies such as The National Advertising Initiative and the Association of National Advertisers have launched the Privacy for America coalition in an attempt to spur national legislation that would, rather than prohibiting certain data practices outright, promote responsible data usage. “There’s going to have to be certain disclosures made to consumers to give them information about what data these advertisers have about them and how it’s being used,” Ms. Grieco explains, “and then there’s the technical issue of how these companies are going to ensure that consumers are really erased from a system if they opt out of being tracked.” As she notes, an indiscriminate ban on collecting consumers’ data, as outlined in the aforementioned federal and state laws, is impractical, and she anticipates a barrage of litigation filed by consumers accusing advertisers of nontransparent data usage practices: “This is really going to be one of those areas in the next 10 years that’s just going to be hot-button and is going to be fleshed out through lawsuits and regulatory actions. For advertisers and owners of websites that want to use advertisers, that kind of puts them in a difficult position, because it’s not really clear right now what they should be doing other than being aware of the fact that these laws exist and that the trend is going more toward consumer knowledge and allowing consumers to opt out.” When consumers do opt out, the problem arises of how that information will be relayed to all involved advertising bodies so they can maintain compliance under the new legislation, especially when opt-out rates can be expected to increase: “I can’t imagine that a lot of consumers are going to say no to not having their movements tracked online,” Ms. Grieco comments. She concludes with a word of caution to advertisers on the critical yet complicated responsibility of remaining compliant amidst such dynamic legislation: “Every day, there are new developments in the privacy area. Even if an advertiser is confident that they’re in compliance now, things can quickly change.”