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Online Behavioral Advertising
Pamela Jones Harbour
New York City Bar
May 14, 2012
Pamela Jones Harbour
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Former Federal Trade Commissioner (2003-2010)
Heads the firm’s Privacy, Competition and Data Protection Practice Group
Well recognized for her knowledge of evolving areas of competition and
consumer protection law, including privacy and data security issues.
Partner
Washington, D.C.
Fulbright & Jaworski L.L.P.
+1 202 662 4505
Overview
~ Do Not Track proposal
~ Future trends
~ Self-regulation
~ The European Union’s reaction
~ Action items
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FTC’s 2009 Staff Report
Website Recommendations
1) Transparency and consumer control;
2) Reasonable security, and limited data retention, for consumer data;
3) Affirmative express consent for material changes to existing privacy promises; and
4) Affirmative express consent to (or prohibition against) using sensitive data for behavioral advertising.
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The Web 2.0 and
Emerging Web 3.0 Environment
Video and mobile devices
Facial recognition technology
Credit card networks entering new markets
Micro-targeting by political campaigns
Consumers value privacy and
control over their data
Technology advances has blurred
the line between personal information
and non-personal information
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FTC’s 2010 Staff Report
Suggested Framework
Privacy by Design
Simplification of Consumer Choice
Greater transparency
Trends
Privacy by Design
Companies required to provide consumers with
clearer choices
Consumers will have the opportunity to make
“choices” closer in time and location to the
disclosure of information
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Effective Self-Regulatory Programs
Easy for consumers to use
Have a real enforcement mechanism
Large portion of the industry adopts self regulatory programs
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Cookies & Do Not Track
“Cookies” can be tools for User convenience
“Cookies” can permit the site-owner to give you a
customized greeting when you return to the site
“Cookies” can be used to provide you with pages from
the site that relate to the subject
matter you were viewing during your
last visit, allowing the site to
serve-up customized or targeted
advertisements that are aimed
at your interests
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European Reaction
Article 29 Working Party finds OBA should be opt-in (June
2010)
Interactive Advertising Bureau (IAB) Europe launched a pan-
European self-regulatory program (April 2011)
Jacob Kohnstamm opinion states IAB standard did not meet
European Union privacy requirements (December 2011)
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Do Not Track
vs.
Do Not Collect
Action Items
If your company is in a business that would be affected by
“do not track” or “do not collect,” let your legislators and
regulators know specifically how your company would be
affected
If you’re not sure whether your company would be affected
by “do not track” or “do not collect,” ask your marketing and
web design departments
If your company utilizes cookies or otherwise collects user
data, scrutinize both the amount and content of data collected,
and collect only the minimum necessary amount of data to
perform the task
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When You Think
DATA PRIVACY AND SECURITY,
Think Fulbright TM
