FTC Releases Staff Report on Cross-Device Tracking

The FTC released a new report on cross-device tracking with recommendations, including increasing transparency and consumer choice.

Practical Law Intellectual Property & Technology

On January 23, 2017, the FTC issued a press release announcing it has published a new report on the privacy concerns and impacts of cross-device tracking, which covers:

  • The technology used to track consumers across multiple internet-connected devices, such as smart phones, televisions, tablets, and wearable devices, and possibly combine that information with offline activities, such as in-store purchases.

  • The benefits and challenges associated with such technology.

  • Industry efforts to address those challenges.

Cross-Device Tracking: An FTC Staff Report builds on the cross-device tracking workshop the FTC held in November 2015, and recommends steps that companies can take to apply the FTC's privacy principles that include providing:

  • Transparency about data collection and use practices, including:

    • whether the company engages in cross-device tracking or enables third party cross-device tracking;

    • clear, comprehensive, and meaningful disclosures about tracking practices the company allows or enables, particularly regarding probabilistic tracking methods used by companies without a direct consumer relationship;

    • truthful claims about the categories of data collected, including not characterizing or referring to raw or hashed email addresses or user names as anonymous or aggregate data; and

    • not making blanket statements to consumers that the company does not share personal information with third parties if it provides raw or hashed email address or user names to cross-device tracking companies or otherwise shares data that is reasonably linked to a consumer or a consumer's device.

  • Consumers with control over data tracking through choice mechanisms that:

    • Clearly and conspicuously disclose any material limitations on how the provided opt-out tools apply or work.

    • Simplify consumer opt-out methods and choices when technically possible.

    • Honor a consumer's behavioral advertising opt-out choice on one device by preventing that device from both receiving behavioral ads based on information from other devices or informing behavioral ads on other devices.

  • Heightened protections for sensitive information, such as health, financial, precise geolocation, and children’s information, including only collecting or using that data with the consumer's express opt-in consent.

  • Reasonable security for collected data, including only keeping data that is necessary for the company's business purposes.

The FTC's report warns that a cross-device tracking company's failure to truthfully and fully disclose information about its tracking practices to both consumers and other companies using or enabling the cross-device tracking technology could violate the FTC Act.

Companies leveraging cross-device tracking technologies, either directly or through third party agencies, should review their marketing and advertising programs, vendor due diligence programs, and public privacy notices in light of the FTC's new guidance.

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