“The level of ambiguity that’s purposeful, the lack of clarity in what is being said in what’s supposed to be a contract, I think is really terrible,” Turow said. “Partly it’s because things are changing and partly it’s because companies don’t want you to know what’s going on.”
And there is, of course, a lot going on.
Visiting a website you trust and have a known relationship with is one thing, said Digital Content Next CEO Jason Kint, but “having dozens, 50-plus, 100-plus third-party relationships fired off at that moment” is another.
“The challenge becomes that the first party really doesn’t have the ability to control all those – that’s how the web works,” Kint said. “There’s a daisy chain of third parties that get involved, and that creates issues. Even contractually it’s been very difficult to try to control that. You can slice and dice where the issues are, but you can’t deny that there is a trust issue.”
“This is approximately the same place we were maybe 10 or 15 years ago with ad targeting,” said NAI President and CEO Leigh Freund. “Consumers over a period of time and with good messaging can understand and have reasonable expectations about the value exchange between their privacy and commercial enterprise and the content that we all consume. And if consumers want to dive into the sausage, they will have the tools to do so.”
That said, more transparency can give those users who are so inclined a few clues on what’s in the sausage. If a user gets a real-time notice from an app that says something like “This app is using an audio beaconing technology in the audio stream,” at least “it gives people the opportunity to ask, ‘What the heck is that?’” said Joseph Lorenzo Hall, chief technologist and director of the Internet Architecture Project at the Center for Democracy & Technology.
Then again, one could also argue that concepts like enhanced notice and AdChoices, first devised in a cookie-based world, are becoming increasingly outmoded as the Internet of Things becomes a reality.
Talking toasters aside, cross-device is changing the game. The FTC recently ran an internal experiment, examining the top 20 Alexa sites in news, sports, shopping, games and reference – 100 in all – to see what cross-device tracking looks like from a consumer perspective.
Although the FTC was able to determine that a lot of sites were engaging in cross-device tracking, it was “hard to determine effectively from the end user point of view when cross-device tracking was going on,” said Justin Brookman, policy director of the FTC’s Office of Technology, Research and Investigation.
What’s noteworthy is that the privacy policies for those 100 sites didn’t have much to say on the topic of cross-device.
“[There was] often a discussion of behavioral tracking in general, oftentimes a link to one or more of the self-regulatory regime’s sites like NAI and DAA,” Brookman said. “But it’s difficult to get a sense of the scope of cross-device just from looking at these policies.”
Which is why publishers, advertisers and vendors alike have to pay heed to what the FTC’s Mithal said: “Companies need to be mindful of the representations they make."