In a workshop just last week, the Federal Trade Commission (“FTC” or the “Commission”) explored issues related to cross-device tracking, a process through which companies track consumers across multiple devices and platforms.  The discussion highlighted the challenges tracking poses and offered some guidance for organizations going forward. 

Guidance from the Chairwoman 

In her opening remarks, Chairwoman Edith Ramirez recognized the benefits that cross-device tracking can provide – including assisting in fraud prevention as companies learn which users typically utilize a device and offering seamless convenience in entertainment as we read a book or watch television on multiple devices.  She also emphasized, however, the privacy risks associated with such tracking, explaining that detailed consumer profiles are created and shared under a veil of hashed identifiers.  

As in prior workshops, the Chairwoman also noted the concern that data could be misused in ways that have a disparate impact on socio-economic groups, including by affecting individuals’ access to loans or other financial resources.  Consumers’ lack of awareness and the absence of choices about tracking – in particular the inability to opt out of the underlying data capture in addition to targeted ads – exacerbate the risks.  

For Chairwoman Ramirez, three principles are key for companies to consider going forward: notice, choice and data minimization.  She called on organizations to “rise to the challenge” of offering consumers options and better safeguards, praising those that had begun to distinguish themselves through best practices. 

Five Takeaways 

Maneesha Mithal, Associate Director of the Commission’s Division of Privacy and Identity Protection, identified five principle takeaways from the workshop: 

  1. Cross device tracking can provide benefits, including reducing the number of times a consumer sees an ad (preventing ad fatigue). 
  2. Greater transparency, choice and consumer education are needed. 
  3. Additional attention should be paid to the consumer experience as technology continues to evolve. 
  4. Room remains for industry innovation, including developing controls to increase consumer awareness of tracking. 
  5. Companies must be mindful of the representations they make.  In particular, they should be careful in accurately describing what it means to opt out.  The failure to do so can be construed as deceptive and could lead to FTC action. 

In short, it is clear that the FTC is focused on the technological and policy issues associated with cross-device tracking and that it will be continuing to “monitor the marketplace” to help ensure consumers’ privacy interests are protected.