FTC Examines Privacy Risks Associated With Cross-Device Tracking

Published On December 10, 2015 | By Zach Lerner | FTC

Cross-device tracking has become increasingly essential for marketers as consumers continue to access the Internet from a greater number of devices. During the FTC’s cross-device tracking workshop, presenters focused primarily on privacy concerns regarding transparency, the nature and scope of consumer opt-out, and consumer control.

FTC Chairwoman Edith Ramirez said that while these concerns are not new, cross-device tracking increases the intensity of these pre-existing privacy challenges. She stated that even the sharing of anonymous identifiers and hashed personally identifiable information (“PII”) presents concerns because they are (in Chairwoman Ramirez’s words) “persistent,” can provide a link to individual users, and can be used to draw sensitive inferences about consumers. Justin Brookman, the FTC’s Policy Director in the Office of Technology Research and Investigation, differentiated between two types of cross-device tracking: 1) probabilistic cross-device tracking, by which marketers make inferences (albeit sometimes quite accurate inferences) about how devices are connected through the aggregation of collected PII and 2) deterministic cross-device tracking, which occurs when a user logs into an identical account across multiple devices. While Mr. Brookman acknowledged that consumers “want and expect first parties to remember what we do across different devices,” he also said that consumers may not know about the broad reach of deterministic tracking, including some companies’ ability to track logged-in users across certain other websites. He said that according to an informal FTC survey, despite the growing number of websites that work with cross-device graphing (whether as a buyer or a contributor), few privacy policies currently explain or reference the cross-device model.

FTC staff and panelists raised but did not resolve whether hashed PII is still PII or how companies should provide and honor consumer choice. Additionally, several speakers raised the increased use of ad-blocking technology, questioning how it will influence cross-device tracking and whether it will lead to greater restraint or simply reduced competition.

The FTC did not identify specific industry practices that are under scrutiny, but made clear that “the FTC will continue to monitor the marketplace and take action as needed to protect consumers,” including addressing unclear or deceptive representations regarding cross-device tracking.

Next Tuesday, December 15th, ZwillGen’s Ken Dreifach will present a 29 minute webinar about cross-device regulation and self-regulation. During the webinar, Ken will discuss potential regulatory risks on the horizon in 2016 involving cross device tracking, and how to mitigate against those risks. To register, please click here.

 

About The Author

Zach Lerner’s practice focuses on a variety of legal matters impacting Internet-based companies. He helps companies in a wide range of industries including education technology, financial technology, unmanned aerial vehicles, and fantasy sports with issues related to privacy, e-commerce, and advertising.

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