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The Privacy Advisor | FTC Eyes Cross-Device Tracking, Issues Warning Related reading: When Cross-Device Tracking Goes Beyond Creepy

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The mysterious and burgeoning world of cross-device tracking was explored in detail Monday during a Federal Trade Commission (FTC) workshop featuring representatives from industry, academia and advocacy. There was general consensus that cross-device tracking has some benefits, but there was also agreement on the need for better transparency and choice for consumers as well as better consumer controls for how their data is being tracked across their devices.

Most notably, it was evident there is still a lot of mystery around the scope and extent of cross-device tracking.

FTC Office of Technology, Research, and Investigation Policy Director Justin Brookman said the agency took a look at 20 popular websites and had difficulty determining when cross-device tracking was being used. He also said it wasn’t clear how the companies behind the sites were collecting and storing consumer data. Additionally, Brookman said, it was “difficult to get a sense of the scope of cross-device tracking by looking at their privacy policies.”

(See the full videos of the first and second panels for yourself.)

Exactly how devices are tracked behind the scenes is still unclear, even for researchers. “It’s fair to say, if it’s hard for researchers to find out what’s going on, it’s strongly suggestive there’s little understanding of it among consumers,” Stanford researcher Jonathan Mayer said. Later, New America’s Open Technology Institute Senior Policy Counsel Laura Moy echoed Mayer’s sentiment, saying, “If it’s difficult for people in this room to understand (cross-device tracking), then it’s impossible for most consumers” to understand.

“People know they’re being tracked, but don’t understand what’s going on under the hood in a very strong way,” said University of Pennsylvania Prof. Joseph Turow. His research from earlier this year found, for example, that 55 to 60 percent of U.S. consumers thought a website's privacy policy meant that the company doesn’t share their data. He also found that consumers tend to believe that privacy policies mean they're protected by the federal government.

But not everything in cross-device tracking is bad news for consumers, according to industry.

“Internet advertising is not evil,” said Network Advertising Initiative President and CEO Leigh Freund, pointing out that the ad industry is a $154 billion economy. She said cross-device tracking allows for continuity of service as well as ad efficiency—which prevents “ad fatigue”—and reduces ad waste.

NAI Director of Policy Jurgen Van Staden, in an earlier panel, also noted that cross-device tracking brings with it many benefits. He said it can help prevent annoying ads that follow the user around the web, ultimately giving consumers a better web experience. He also said it helped level the playing field by allowing smaller companies to leverage cross-device tracking data to compete with larger companies. Plus, Van Staden noted, cross-device tracking helps prevent malicious ads, online fraud and gives marketers a better understanding of their consumers while allowing publishers the ability to provide their users with more relevant content.

However, not everyone in the digital industry agreed.

Digital Content Next CEO Jason Kint, whose organization represents 70 content-provider companies, said that though the personalization that cross-device tracking allows is a great development, the diminishing trust by consumers as evidenced by increased use of ad blockers in the marketplace is a concern.

“We cannot deny there is a trust issue in digital advertising,” Kint said. He argued that online behavioral advertising (OBA) only pays for a small portion of the free content on the web. “When I look at our publishers—including the upstarts and the media companies that have been around for 100-plus years—OBA is in the low single-digit percentage of their advertising dollars. Let’s pop that bubble right now … OBA doesn’t pay for everything on the web.”

Panelists also confronted whether cross-device tracking is part of a technological evolution or something entirely new.

And though there was consensus that cross-device tracking is part of an evolution in digital tracking, Stanford’s Mayer argued that the evolution from the more traditional cookie-based tracking brings with it an evolution of risk as well. He said the scale of data collected across devices in aggregate poses a much bigger data breach target for bad actors, for example, presenting a much larger potential for consumer harm.

Diminishing trust is a concern for others, as well. Center for Democracy & Technology Chief Technologist Joseph Lorenzo Hall pointed out the rise of audio beacons and their intrusiveness, noting that many probabilistic techniques of cross-device tracking are “surreptitious by design” and that the web is rapidly becoming “an adversarial environment,” undermining trust among users.

NAI’s Van Staden said while such concerns are good ones, NAI members “have provided good controls in this space,” including data-retention and -access requirements as well as special requirements when sensitive data—such as health information—is disclosed. “There are bad actors,” he said, “and those companies should be dealt with, but we should incentivize companies to do the right thing."

In agreement, Freund defended the NAI’s track record in providing users with choice and controls. “As the level of information gets more sensitive, the level of consent gets higher,” she said. Plus, she noted, our collective interpretation of what is sensitive data has evolved over the years. “Twenty years ago, my Social Security number was my driver’s license number,” and we would never implement that now, she said. “That same analysis can be applied online." She added it’s important to focus on the harms and solve for those.

Van Staden admitted that, as an industry, transparency tools for consumers in the cross-device tracking space have not yet been developed, but he was optimistic that companies are working on new transparency tools for the near future.

FTC Division of Privacy and Identity Protection Associate Director Maneesha Mithal noted that cross-device tracking does have clear benefits, but sees the need for better transparency, choice and education for consumers. Mithal also agreed that trust in the marketplace and a better consumer experience needs improvement.

“There’s also room for industry innovation,” she said, specifically for more tools to make consumers more aware of cross-device tracking.

Most importantly for privacy pros, though, Mithal warned, “companies need to be mindful of the representations they make.” To the companies providing opt-outs to consumers, “they need to be careful about what they’re saying and make sure they aren’t misleading consumers.” Otherwise, they could be inviting a Section 5 enforcement action upon themselves.

Top image from the FTC's website.

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