Home Data-Driven Thinking Consent (The Enemy Of Ad Tech) Is Creeping Into More Laws

Consent (The Enemy Of Ad Tech) Is Creeping Into More Laws

SHARE:

“Data-Driven Thinking” is written by members of the media community and contains fresh ideas on the digital revolution in media.

Today’s column is written by Gary Kibel, a partner in the digital media, technology and privacy practice group at Davis & Gilbert.

The ad tech ecosystem in the United States is largely based on  the collection of persistent identifiers and personal information generally operating  on an opt-out basis.  However, in a troubling sign for the industry, a number of new and proposed laws are introducing consent requirements that may impact the scope and volume of data collected from consumers. While certain sensitive personal information has always been understood to require consent to collect, these new laws expand consent to cover more commonly collected and exploited data.

The most comprehensive privacy law in the United States, the California Consumer Privacy Act (CCPA) mostly operates on an opt-out basis. The California Privacy Rights Act (CPRA, AKA CCPA 2.0) also embraces this opt-out model. Virginia, which is poised to potentially become the second state in the United States, with a comprehensive privacy law, is also embracing the opt-out model. However, other laws are chipping away at this liberal approach to data collection and use.

North Dakota recently proposed a privacy law that would have required opt-in consent for any sales of a broad swath of data, such as location, browsing history, residential details and even interests. However, the bill failed to pass in the North Dakota House of Representatives earlier this month. Given that North Dakota has barely 2% of California’s population, the impact might not have been dramatic, but it may have contributed to the opt-in trend.

Last year, in the wake of COVID and the calls to use mobile location for contact tracing, Congress proposed a bill called the “COVID-19 Consumer Data Protection Act of 2020.”  This bill would have required opt-in consent for the collection of precise geolocation data, and this term was vaguely defined. This bill also did not pass.

The city of Portland, Oregon recently enacted a law, effective January 2021, that prohibits any company from using facial recognition technologies in a place of public accommodation.  Surprisingly, this law does not even allow for opt-in consent. It is an outright prohibition, no matter how informed and willing a consumer may be to allow such data collection. It’s shocking to see a law that doesn’t even allow a consumer to consent to a data collection method.

And while not a law, everyone is well aware of the pending changes from Apple in iOS14 to require opt-in consent to collect the IDFA for purposes of tracking and targeted advertising.

These trends do not bode well for the ad tech industry. Consumers are unlikely to opt-in and consent in high numbers. Data segments could take a huge hit if the mere collection and sharing of cookie data, for example, required an opt-in.

Some companies are hedging their bets and looking more closely at first party data and/or consent-based mechanisms.  For now, the industry should stay alert, engage with lawmakers and speak up to promote the value of our current opt-out regime.

Follow Gary Kibel (@GaryKibel), Davis & Gilbert LLP (@dglaw) and AdExchanger (@adexchanger) on Twitter.

Must Read

AI Is Redefining Premium Content – Which May Not Be A Good Thing

At AdExchanger’s Programmatic AI conference, media experts discussed how the rise of AI-generated content is changing the industry’s understanding of “premium” content.

The Big Story Podcast

Prog AI Live: AI’s Slippery Slop

Recorded live in Las Vegas at Prog AI, the AdExchanger team tackles a tricky question: As AI floods the feed with chaotic, addictive content and people engage with it, what does “premium” even mean anymore?

The Programmatic Auction Is Changing In Real Time – Here’s How

Two decades after the first RTB auction, programmatic is more complex than ever – and that’s before you even consider generative AI.

Privacy! Commerce! Connected TV! Read all about it. Subscribe to AdExchanger Newsletters

Publicis Acquires LiveRamp In A Major Shakeup For Indie Data Collaboration

Hundreds of exasperated and unexpected ad industry phone calls were made on Sunday, as agencies and ad tech vendors discussed the fallout of Publicis Groupe’s $2.2 billion acquisition of LiveRamp over the weekend.

Finger connecting dots on a cork board network concept

These AI Agents Want To Handle All The Annoying Parts Of Media Buying

Meet Kovva, a new AI ad tech startup tackling the unglamorous gruntwork that programmatic has never fully automated.

Felipe Cuevas for TelevisaUnivision

We Went To Eight Upfronts This Week. Here's What We Learned

Upfront week is officially over. In case you missed any of the dog-and-pony shows — including Chappell Roan belting out “Pink Pony Club” during YouTube’s Broadcast — don’t worry; we’ve got you covered.