The investigative unit of the Better Business Bureaus, the Online Interest-Based Advertising Accountability Program has recently issued a notice to all first and third-parties stating that commencing 1 February 2017, the Accountability Program is enforcing the Cross-Device Guidance, titled Application of the Self-Regulatory Principles of Transparency and Control to Data Used Across Devices(see also our previous related report).

The Cross-Device Guidance, which was released in November of 2015 (see our related report), clarifies how companies which try to reach consumers across their various computers and mobile devices, should provide them with prior notice and choice regarding interest-based advertising.

In practical terms, this requires both the first-parties (e.g., websites and mobile apps) and thirdparties (e.g., advertising technology companies) to disclose cross-device tracking practices in their privacy policies, as well as to provide “enhanced notice” of such practices through clear, meaningful, and noticeable links outside of the privacy policy. The Cross-Device Guidance also requires that the opt-out choices made available to consumers for interest-based advertising are required to also cease cross-device targeting on the device from which the consumer has opted-out.

Accordingly, companies that engage in cross-device tracking and targeting should ensure that they comply with the Cross-Device Guidance. Failure to comply with the Guidance could result in an Accountability Program enforcement action.

We will be happy to provide further advice and recommendations concerning the required steps to ensure compliance with the applicable obligations and their scope.