Publishers should note that while the DAA’s principles apply also to mobile apps, a different opt-out mechanism applies to mobile apps because they are not browser-based; the cookie-based opt-out used in browser-dependent web site navigation is not effective for mobile apps. Instead, the DAA earlier this year launched an app-based opt-out mechanism. For more information on that, see http://www.aboutads.info/appchoices. (A future blog post will further explain this new program in detail.)
Web site and mobile publishers should determine what third-party tracking devices and IBA activities are associated with their services. Many times publishers are not even aware that their vendors and others have associated IBA with them and their services. Beyond complying with the notice obligations of the DAA’s self-regulatory programs for web sites and mobile apps, publishers need to take care in how they describe these programs, and tracking and targeting more generally (e.g., for analytics). Failure to do so can result not only in their privacy policies being inaccurate and even deceptive, but also in breach of contractual obligations they may have made to their analytics and advertising vendors and partners, some of which may have been made on their behalf by contractors assisting with their site and app operations. It is also a common mistake of publishers to suggest that third-party opt-out programs, when they are described, do more than they in fact do. That is a misrepresentation, however unintentional, that could subject the publisher to claims by state or federal authorities that they have engaged in illegal, deceptive practices. In addition, publishers should disclaim responsibility for the accuracy or effectiveness of third-party opt-out notices, programs, and tools. Accordingly, publishers’ sites and apps should be accessed to determine what IBA and tracking activities are occurring, and notices and privacy policies should be drafted by legal counsel familiar with digital advertising and its self-regulatory programs, and their limitations, to accurately and meaningfully provide transparent notice and explanation of choice.