Hey Adtech, Watch Your Step, Legislatures Want To Ban ‘Surveillance Advertising’*

There’s recently been a movement against ‘surveillance capitalism -’ a term coined by Shoshana Zuboff in her rather large book “The Age of Surveillance Capitalism.” But what is surveillance capitalism and its sister term ‘surveillance advertising’ and what does it mean for adtech privacy?

What Is Surveillance Advertising?

Surveillance Capitalism’ is a “market driven process where the commodity for sale is your personal data, and the capture and production of this data relies on mass surveillance of the internet.” Surveillance Capitalism tends to occur on free online services, such as Facebook, that provide a ‘free’ service, but in return, receives large swaths of user data that the company sells or otherwise monetizes. (You remember Cambridge Analtyica). ‘Surveillance Advertising’ is essentially surveillance capitalism with the goal of serving you ads. Surveillance advertising is otherwise known as targeted advertising or behavioral advertising. It is the practice of showing individual consumers different advertisements based on inferences about their interests, demographics, and other characteristics drawn from tracking their online activities over time.

Currently, What Can I Do To Stop Surveillance Advertising Targeting Me?

The Digital Advertising Alliance (DAA) and the Network Advertising Initiative (NAI) have long had industry-wide opt outs for consumers. But, they don’t work. I suggest reading this article by The Markup to get a better understanding, but here are the basic flaws of these industry-wide opt outs.

First, they’re based on cookies. Rather than prevent webpages from placing cookies on you, if you opt out via DAA or NAI, a second cookie is placed that says, don’t use the information you gathered from the prior cookies for targeted advertising. In other words, companies are still collecting your personal information. And cookies are being deprecated in the second half of 2023. So this method won’t even work next year.

Second, not every company is a member of DAA or NAI and so when you use their opt out, it misses some companies.

Finally, when you use these industry-wide opt outs, your opt out is being sent to every company on the DAA’s/NAI’s list. Essentially, its being sent to companies that otherwise wouldn’t know about you, thus spreading your information further, which is the opposite of the purpose of these opt outs.

What Laws Are Being Proposed?

In light of the inadequacies of the DAA and the NAI, both the US and the EU, there is a movement to ban surveillance advertising, and it’s gaining momentum. In the EU, the Digital Services Act (DSA) is making its way through the legislative process. The bill stopped short of an outright ban on targeted advertising, but it does ban companies like Facebook and Google from using sensitive data for targeted advertising. Moreover, the DSA bans the targeted advertising of minors altogether, no matter the category of personal data.

In the US there are a few attempts to ban surveillance advertising. First, the FTC is being petitioned by Accountable Tech to use its rulemaking authority under § 5 of the FTC Act (specifically, the ‘unfair methods of competition’ prong) to ban surveillance advertising. The FTC is currently seeking comments.

In addition, Senator Booker (D-NJ) has introduced the Banning Surveillance Advertising Act (BSAA) while Eshoo, Schakowsky have introduced a companion bill in the house. The bill prohibits advertising networks and facilitators from using personal data to target advertisements, with the exception of broad location targeting to a recognized place, such as a municipality.

BSAA also prohibits advertisers from targeting ads based on protected class information, such as race, gender, and religion, and personal data purchased from data brokers. However, the bill explicitly allows contextual advertising (Contextual advertising is the placing of ads on web pages based on the content of those pages rather than the personal data of the individual. An example of contextual advertising would be the placement of an ad for a bike tire when viewing your local bike repair shop’s webpage. The bike tire ad was placed because the webpage is about repairing bikes, not because you searched for bike tires two weeks ago).

Along with the legislative momentum is the constituents’ push. A few organizations including The Center for Digital Democracy, Accountable Tech, The Center for Humane technology, Common Sense Media, and EPIC.org have created a coalition (which can be found at ​​https://www.bansurveillanceadvertising.com/) to petition the passing of BSAA .

Now, I’m sure its unsurprising to hear, but Google and other marketers think outright bans go too far, that this will (1) harm US companies and not foreign companies, (2) harm data privacy and security, and (3) hurt small businesses who rely on targeted advertising. These arguments are not new, in fact they were all used against Epic in Epic Games v. Apple. I’ll refrain from commenting here and let you be your own judge.

So What Is Adtech’s Next Move?

NAI and DAA have been inadequate for a decade. And if adtech companies want to keep their industry alive, they need to regulate more. The momentum isn’t stopping and if adtech doesn’t provide basic privacy safeguards, legislatures may end the industry altogether by banning targeted advertising.

*This article was originally posted by the Privacy Law Section of the California Lawyers Association at https://calawyers.org/privacy-law/privacy-law-review-what-you-need-to-know-march-2022/

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Privacy attorney @ In-House Privacy, Inc. Co-chair of IAPP’s Silicon Valley chapter.

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McKenzie Thomsen

McKenzie Thomsen

Privacy attorney @ In-House Privacy, Inc. Co-chair of IAPP’s Silicon Valley chapter.

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