The Newspaper Association of America has filed a first-of-its-kind complaint with the FTC over certain ad blocking technologies.

Is it “Internet” or “internet”? The Associated Press is about to change the capitalization rule.

Lots of people criticized Instagram’s new logo, but, according to a design-analysis app, it’s much better than the old logo at doing this.

Twitter has finally realized that people don’t use it to buy things.

Facebook wants to help sell every ad on the web.

A Russian law enforcement agency is investigating controversial groups alleged to have encouraged more than 100 teenage suicides on social media.

A self-proclaimed “badass lawyer” lost a defamation suit against a Twitter account that parodied him.

The Internet of every single thing must be stopped.

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iStock_000034905072_MediumSocial media has allowed aspiring authors, musicians, filmmakers and other artists to publish their works and develop a fan base without having to wait to be discovered by a publishing house, record label or talent agency. And that seems to have made at least modest celebrity easier to achieve. The financial rewards that we usually equate with fame, however, might be just as elusive as they were in the pre-Internet age—perhaps even more so, in an era where content, once posted online, can be exploited by others in ways that typically don’t generate money for the creator of the content.

Sure, some hard-working social media stars are scoring big profits based on their popularity. The YouTube channel CharlisCraftyKitchen, for example, which features videos of a young girl making treats and which boasts 29 million views a month, averages monthly ad revenue close to $130,000.

The Swedish gamer PewDiePie’s net worth is estimated at $61 million—a big sum for a guy who is unknown to most people over 40 years old.

And, having secured a book deal and endorsement contracts with brands like L’Oreal, self-taught makeup artist/vlogger Michelle Phan is now at the center of a true life rags to riches story.

I suspect, however, that a far more common tale is the one told by Gaby Dunn, co-star of the YouTube comedy sketch channel Just Between Us, in a fascinating article entitled “Get Rich or Die Vlogging: The Sad Economics of Internet Fame.”

Dunn reports that, despite her channel’s “more than half a million subscribers” and “hungry fan base,” she’s broke and has to take menial jobs to make ends meet.

Dunn says that she and her vlogging partner, Allison Raskin, make money from the “ads that play before [their] videos,” and by freelance writing and performing, “but it’s not enough to live, and its influx is unpredictable.”

Almost as frustrating as brands not believing that Dunn’s channel is big enough to sponsor are her fans’ reactions when she does score a patron. Dunn’s and Raskin’s third branded video in more than two years resulted in viewer comments such as “Enough with the product placement” and “Gotta get that YouTube money, I guess.” And, as we’ve discussed in past blog posts, if a vlogger or other content producer is being paid to endorse a product or service, he or she is generally required to disclose this material connection to his or her followers.

In any event, Dunn is hardly the only online content creator feeling the pinch. Even writers who’ve enjoyed full-time positions at large journalism outlets are finding themselves out of a regular paycheck. The popular digital media website Mashable, for example, laid off 30 members of its staff—including several high-level editors. The current affairs website Salon recently cut back on the number of people on its payroll, too—20 percent of the publication’s editorial staff lost their jobs in April.

Things are equally discouraging in the music business; one revealing statistic from the RIAA is that, in 2015, record companies received more money from vinyl record sales than from ad-supported online streaming.

A real challenge for social media celebrities and other content creators is that online ad rates have been declining for years; despite the continued growth of online advertising, there are not enough ads to support the ever-expanding pool of Web content seeking advertiser support.

Another threat is the rise of freebooting—that is, the practice where a video specifically created for and posted to YouTube is, without the authorization of the video’s creator, copied and uploaded to Facebook, where it may generated millions of views without compensation to the creator.

And perhaps the greatest concern for content creators is the increasing popularity of ad-blocking technologies. The use of ad blockers has grown by 41 percent over the past 12 months; there are now nearly 200 million active users of such technologies worldwide. In the United States, an estimated 45 million Americans are surfing an ad-free version of the Internet, resulting in an estimated $22 billion in lost ad revenues in 2015.

All of this adds up to form a rather bleak picture for content creators seeking to make a living online; a million social media followers may result in fame, but not fortune. And fame without fortune doesn’t pay the bills.

 

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For more information on potential legal hurdles for social media celebrities, influencers, bloggers, vloggers and other content creators seeking to make a living online, please see these related Socially Aware blog posts:

Innovative Social Media Marketing Cannot Overlook Old-Fashioned Compliance

FTC Continues Enforcing Ad Disclosure Obligations in New Media and Issues a Warning to Advertisers

FTC Enforcement Action Confirms That Ad Disclosure Obligations Extend to Endorsements Made in Social Media

Influencer Marketing: Tips for a Successful (and Legal) Advertising Campaign

An FTC Warning on Native Advertising

 

Social media is all about innovation, so it is no surprise that social media marketers are always looking for innovative ways—such as courting social media “influencers” and using native advertising—to promote products and services to customers and potential customers. But, as the retailer Lord & Taylor recently learned, the legal rules that govern traditional marketing also apply to social media marketing.

 

Earlier this year, the Federal Trade Commission (FTC) reached a settlement with Lord & Taylor in a dispute involving its online advertising practices. According to the FTC’s Complaint, Lord & Taylor allegedly:

  • gifted a dress to 50 “fashion influencers” and paid them to post on their Instagram accounts photos of themselves in the dress during a specified timeframe; and
  • paid for, reviewed and preapproved Instagram posts and an article in an online magazine, Nylon.

In neither case, according to the FTC, was Lord & Taylor’s role in the promotional effort appropriately disclosed.

On these alleged facts, the FTC brought three counts alleging the following violations of Section 5 of the FTC Act’s prohibition on deceptive practices:

  • the failure to disclose that the influencers’ Instagram posts did not reflect their independent and impartial statements, but rather were specifically created as part of an advertising campaign;
  • the failure to disclose or adequately disclose that the influencers were paid endorsers; and
  • the failure to disclose that the Nylon materials were not independent statements and opinions of the magazine, but rather “paid commercial advertising.”

As has been widely remarked, this is not the first time the FTC has brought a case relating to social media advertising. The settlement, however, is noteworthy because it brings together issues relating to both native advertisements and endorsements. The FTC has been focusing on these issues since late 2014; its activities have included:

  • Settling with the advertising firm Deutsch LA, Inc. in late 2014 in connection with its allegedly deceptive activities relating to the promotion, on behalf of its client Sony, of the PlayStation Vita handheld gaming console through Twitter (we wrote about the Deutsch LA case on Socially Aware).
  • Settling in September 2015 with Machinima, Inc., an online entertainment network that allegedly paid video bloggers to promote the Microsoft Xbox One system (we also wrote about the Xbox One settlement on Socially Aware).
  • Issuing a closing letter, at the same time as the Machinima settlement, indicating that the FTC had investigated Microsoft and Microsoft’s advertising agency, Starcom, in relation to the influencer videos at issue in Machinima. The closing letter was significant because it suggested that the FTC was primed to take the position that a company whose products are promoted bears responsibility for the actions of its ad agencies—as well as the actions of those engaged by its ad agencies.
  • Releasing a policy statement and guidance on native advertising in late 2015, which warned companies—again—that it is deceptive, in violation of Section 5, if reasonable consumers are misled as to the true nature or source of an advertisement. (Our Client Alert on these materials can be read here.)

The compliance issue with native advertising is that content that does not appear to be advertising—such as an advertisement or promotional article in an online or print publication formatted to look like the non-advertising materials in the same publication—must be clearly and conspicuously disclosed as advertising. The relevant compliance issue with endorsements is that any payment or other compensation received by the endorser from the promoter must be appropriately disclosed.

The concept underlying native advertisements and endorsements is the same: Consumers must be aware that they are reviewing promotional material, not “native” or “organic” content, whether it is on a social media platform, a website or in a print publication.

The Lord & Taylor settlement is yet another clear signal that paid promotions of any kind, in any medium, must be disclosed. Given the FTC’s focus on these issues and the repeated enforcement actions, especially with respect to social media endorsements, it is likely that the FTC will continue to enforce in this area until it is convinced that the market understands the disclosure rules.

In light of the risk in this area, the Lord & Taylor Consent Order is noteworthy, as it provides valuable insight into how the FTC expects companies to avoid running afoul of the endorsement and native advertising rules.

For example, the Order requires Lord & Taylor to provide any endorser “with a clear statement of his or her responsibility to disclose, clearly and conspicuously,” the material connection between the retailer and the endorser in any advertisement and communication, and to obtain a signed and dated acknowledgment of receipt of this statement from the endorser. In addition, the Order requires Lord & Taylor to maintain a system to monitor and review its endorsers’ representations and disclosures. Taken together, these requirements essentially lay out components of a compliance program that any company using social media for advertising should consider.

Of course, any such program requires time and resources, and no company has those in infinite supply. But, moving beyond the FTC’s Complaint and Order, there are other noteworthy aspects of the social media endorsement issue that appear to have been overlooked.

According to news reports and comments from Lord & Taylor, it appears that the company (and commentators) recognized the potential FTC compliance issue right after the ad campaign launched. The company reportedly stated, after the settlement, that “it came to our attention [a year ago] that there were potential issues with how the influencers posted about a dress in this campaign, [and] we took immediate action with the social media agencies that were supporting us on it to ensure that clear disclosures were made.” And, indeed, articles from the time of the advertising campaign noted, for example, that “the [endorsing] bloggers left out an important piece of information in their Instagram posts: a disclosure that they had been paid to post by Lord & Taylor.” Another website commented at the time that the bloggers “failed to mention they were paid,” and suggested that the company was getting away with violating the FTC Act (though it did note that many bloggers had gone back to add “#sponsored or #ad to their posts).” The immediate aftermath of the Lord & Taylor campaign that ultimately formed the FTC’s case suggests that awareness of the issues is rising among the public, and that even a quick fix can be too late.

In light of this awareness, the failure to disclose obvious ties between the endorser and the promoter can undermine a campaign. And, even though the FTC does not have the authority to impose civil money penalties for these types of violations of the FTC Act, state Attorneys General appear to be getting in on the act. Machinima, Inc., for example, settled allegations with the FTC regarding its use of influencers in promoting the Xbox One (as we noted above). A few months later, however, the company entered into a settlement with the New York Attorney General that included a penalty of $50,000 for its alleged failure to disclose payments to the influencers.

These events strongly suggest that ensuring appropriate disclosures is more than just an FTC compliance issue. While the FTC is actively enforcing in this space, the margin of error is shrinking not only because of the FTC, but also because of the increasing awareness of the public, and the new risk of enforcement (including financial penalties) by state Attorneys General.

 

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For more information on potential legal hurdles for companies engaged in social media marketing, please see these related blog posts:

An FTC Warning on Native Advertising

FTC Continues Enforcing Ad Disclosure Obligations in New Media and Issues a Warning to Advertisers

FTC Enforcement Action Confirms That Ad Disclosure Obligations Extend to Endorsements Made in Social Media

Defense lawyers who checked out the Facebook page of a plaintiff suing their client can be prosecuted for attorney misconduct, New Jersey judge rules.

Norwegian band changes its name to avoid “social media censorship.”

Can public agencies control their employees’ social media posts?

Google has complete discretion over whether or not to grant “right to be forgotten” requests. Some people question the sense of that.

This U.K. bar offers to save its customers from bad Tinder dates.

Why are boys at lower risk for the toxic effects of social media than girls?

New data indicates that choice of social channel, headlines and post length can maximize shares on social media.

Will the new Down to Lunch networking app continue to grow in popularity despite hitting some all-too-common social media snags?

The NYPD’s anti-encryption #UnlockJustice social media campaign fails. Big time.

These puppies earn HOW MUCH per Instagram post?! They’d better be in compliance with the FTC’s disclosure rules.

To stay abreast of social media-related legal developments, please subscribe to our free newsletter.

03_01_Mar_SociallyAware_COVER1aThe latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media. In this edition, we offer tips for a successful—and legal—advertising campaign; we examine a New York State Appellate Division opinion significantly limiting a personal-injury-case defendant’s access to the plaintiff’s social media posts; we review a court decision highlighting potential risks for companies seeking to exploit works licensed under the Creative Commons regime for commercial use; we take a look at an FTC report intended to help companies minimize the legal and ethical risks associated with their use of big data; we consider the complications that a federal district court opinion may create for companies hosting user-generated content; we explore the FTC’s guidance for businesses that publish advertising that could be confused with editorial content; we discuss seven key things to consider when drafting the terms and conditions for a mobile app in Europe; and we describe the key provisions of the European Commission’s proposed directives concerning a business’s online sale of goods or digital content to consumers.

All this—plus an infographic illustrating the state of the U.S. online music industry.

Read our newsletter.

The latest issue of our Socially Aware newsletter is now available here.

01_08__Jan_SociallyAware_COVER_v6In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we offer practical tips to help ensure the enforceability of website terms of use; we discuss the FTC’s ongoing efforts to enforce disclosure obligations in social media advertising; we examine efforts by top social media platforms to control cyber-harassment and explicit material; we take a look at four recently passed laws protecting Californians’ privacy rights; and we explore legal issues that UK brands need to consider when engaging in vlogger endorsements and social media marketing.

All this—plus an infographic listing 2015’s most popular social media trends.

Read our newsletter.

Magnifying2In a new report, the Federal Trade Commission (FTC) declines to call for new laws but makes clear that it will continue to use its existing tools it to aggressively police unfair, deceptive—or otherwise illegal—uses of big data. Businesses that conduct big data analytics, or that use the results of such analysis, should familiarize themselves with the report to help ensure that their practices do not raise issues.

The report, titled “Big Data: A Tool for Inclusion or Exclusion? Understanding the Issues” grew out of a 2014 FTC workshop that brought together stakeholders to discuss big data’s potential to both create opportunities for consumers and discriminate against them. The Report aims to educate businesses on key laws, and also outlines concrete steps that businesses can take to maximize the benefits of big data while avoiding potentially exclusionary or discriminatory outcomes.

What Is “Big Data”?

The Report explains that “big data” arises from a confluence of factors, including the nearly ubiquitous collection of consumer data from a variety of sources, the plummeting cost of data storage, and powerful new capabilities of drawing connections and making inferences and predictions from collected data. The Report describes the life cycle of big data as involving four phases:

  • Collection: Little bits of data are collected about individual consumers from a variety of sources, such as online shopping, cross-device tracking, online cookies or the Internet of Things (i.e., connected products or services).
  • Compilation and Consolidation: The “little” data is compiled and consolidated into “big” data, often by data brokers who build profiles about individual consumers.
  • Data Mining and Analytics: The “big” data is analyzed to uncover patterns of past consumer behavior or predict future consumer behavior.
  • Use: Once analyzed, big data is used by companies to enhance the development of new products, individualize their marketing, and target potential consumers.

The Report focuses on the final phase of the life cycle: the use of big data. It explores how consumers may be both helped and harmed by companies’ use of big data.

Benefits and Risks of Big Data

The Report emphasizes that, from a policy perspective, big data can provide significant opportunities for social improvements: big data can help target educational, credit, health care, and employment opportunities to low-income and underserved communities.  For instance, the Report notes that big data is already being used to benefit underserved communities, such as by providing access to credit using nontraditional methods to establish creditworthiness, tailoring health care to individual patients’ characteristics, and increasing equal access to employment to hire more diverse workforces. Continue Reading Big Data, Big Challenges: FTC Report Warns of Potential Discriminatory Effects of Big Data

brand advertising word cloud

“Native advertising”—ads that may blur the distinction between advertising and editorial, video or other content—has been a hot topic in recent years for both marketers and regulators. It is popular with marketers because it is apparently an effective advertising model. The Federal Trade Commission (FTC), on the other hand, contends that it may be deceptive when the advertising content is not readily identifiable to consumers as such, and it has just issued guidance on how advertisers can stay on the right side of the law. On December 22, 2015, the FTC released an Enforcement Policy Statement on Deceptively Formatted Advertisements that focuses in particular on “native” advertising, along with guidance for businesses on native advertising that further fleshes out the FTC’s expectations.

The Enforcement Policy Statement defines “natively formatted advertising” as communications “that match the design, style, and behavior of the digital media in which it is disseminated.” For example, an advertisement may be integrated into a newspaper website, with a “headline” and then a few lines of text, so that it appears similar to substantive, publisher-generated news articles posted on the website. Native advertisements may also appear on social media platforms and may be delivered as videos or through other media.

Regardless of format, the rule is the same. As the Statement puts it:

Deception occurs when an advertisement misleads reasonable consumers as to its true nature or source, including that a party other than the sponsoring advertiser is the source of an advertising or promotional message, and such misleading representation is material.

In light of this principle, the FTC may deem an advertisement that looks like an ordinary news article to be deceptive if consumers are not provided with sufficient information to differentiate the advertisement from publisher-generated, non-advertising content. This information may be inherent in the nature of the advertisement, or it may require a separate disclosure indicating that the advertisement is a marketing communication. For example, in FTC v. Coulomb Media, Inc., as well as other cases, the FTC alleged that defendants deceptively used fake news websites to market açai berry products. Similarly, and more recently, in FTC v. NourishLife, LLC, the FTC alleged that the defendants misrepresented that a so-called research website was an independent source for information about the speech disorder apraxia, when in fact the website advertised the health benefits of the company’s products.

A disclosure may be important because, even if the substance of the natively formatted advertisement is not deceptive, the nature of the advertisement itself can be deceptive. In this regard, the FTC has recently brought enforcement actions and warned about advertising that appears to be user-generated commentary about a product or service but is in fact marketing content created by or on behalf of an advertiser. You can read more about these enforcement actions here and here.

To put it another way, the Enforcement Policy Statement holds that “an ad is deceptive if it promotes the benefits and attributes of goods and services, but is not readily identifiable to consumers as an ad.” But what, exactly, does that mean? The Policy Statement and the guide for businesses offer some considerations of what may make an advertisement “readily identifiable.” The guidance lists 17 mini case studies that provide examples of what does and does not require a disclosure. (The fact that 17 examples are necessary suggests the potential complexity in determining what does or does not constitute an advertisement that requires a disclosure.) The recurring theme of the examples is whether the consumer can reasonably ascertain that the advertisement is paid marketing material and not content organically generated by the publisher (or by a user in the case of social media or video-hosting websites).

For cases in which native advertising requires a disclosure, the new guidance recaps the FTC’s .com Disclosures guidance for businesses, which lays out basic requirements for making “clear and prominent” disclosures. The guidance also adds some new considerations, such as the need to disclose that the native content is advertising near the focal point of the ad, or in front of or above the “headline” of the native advertisement. (This disclosure needs to convey to the consumer that the material is advertising before the consumer clicks through the ad to the main advertising page.) In addition, the guidance suggests that, for multimedia ads (such as videos), the disclosure should be made in the video itself before the consumer receives the advertising message. That is, if the advertisement is only a small part of the overall video, the disclosure must be “delivered as close as possible to the advertising messag[e]” itself. Finally, the guidance affirms that the disclosures should include terms likely to be understood, such as “Ad,” “Advertisement,” or “Paid Advertisement,” and not terms such as “Promoted” or “Sponsored,” which are ambiguous in this context and could imply, for example, that a sponsoring advertiser funded the content but did not create or influence it.

As the FTC continues to scrutinize various mechanisms for delivering advertising online, companies should make sure that consumers are aware when they are being marketed to, even as the participants in the digital advertising ecosystem come up with new and innovative ways to deliver those marketing messages. All participants, including the companies whose products are being marketed, are potentially at risk of an FTC enforcement action if their advertisements are found to be deceptive, and thus every participant should pay heed to the FTC’s recent statements and guidance. In light of the FTC’s aggressive approach in this area, making sure that innovative forms of advertising meet the FTC’s timeless disclosure standards should be on every company’s radar.

Word Cloud with Influence related tags

In an age of explosive growth for social media and declining TV viewership numbers, companies are partnering with so-called “influencers” to help the companies grow their brands. Popular users of Instagram, Vine, YouTube and other social media sites have gained celebrity status, generating millions of views, impressions and “likes” with every upload.

Capitalizing on the shift from traditional media to online platforms, advertisers have begun to engage influencers in marketing campaigns. In a May 2015 study, 84% of marketers said they expect to launch at least one influencer marketing campaign in the next 12 months. Of those who had already done so, 81% said influencer engagement was effective. In a separate study, 22% of marketers rated influencer marketing as the fastest-growing online customer-acquisition method.

So what is an influencer, anyway? By its broadest definition, an influencer is any person who has influence over the ideas and behaviors of others. When it comes to social media, an influencer could be someone with millions of followers or a user with just a few loyal subscribers. One thing that all influencers seem to have in common is that their audiences trust them. As such, influencers can be powerful advocates, lending credibility, increasing engagement and ultimately driving consumer actions.

Influencer marketing can be an effective tool, but it’s important to do right. As recent Federal Trade Commission (FTC) and Food and Drug Administration (FDA) investigations demonstrate, online advertising is an area of relatively active enforcement, and influencer marketing presents a number of potential legal issues. The following tips can help companies lead successful influencer marketing campaigns while lessening the risk of liability.

Disclosure Is Key

In September, the FTC settled a case with Machinima, a company that paid popular video bloggers to promote Microsoft’s Xbox One system through YouTube. Despite the hefty sums paid out to the gamers (one of whom pocketed $30,000), Machinima did not require them to make any disclosures. The FTC alleged that the failure to disclose the relationship between Machinima and the gamers was deceptive, in violation of Section 5 of the FTC Act. In its Endorsement Guides, the FTC has taken the position that a failure to disclose unexpected material connections between companies and the individuals who endorse them is deceptive.

This case raises two important questions: (1) when is a disclosure required and (2) what constitutes adequate disclosure? Continue Reading Influencer Marketing: Tips for a Successful (and Legal) Advertising Campaign

Woman using multiple devices phone laptop and tablet lying in a wood bench in a park

Cross-device tracking is a hot new issue for regulators. Companies engaged in the practice should take note of two recent developments. On November 16, 2015, the Federal Trade Commission (FTC) hosted a workshop on the issue and, perhaps not coincidentally, on the same day the Digital Advertising Alliance (DAA) addressed the applicability of its interest-based advertising (IBA) self-regulatory regime to the practice.

Cross-device tracking enables companies to ascertain—either definitively or with a high degree of probability—that multiple devices are connected to the same person. There are two ways to do this.

The first way is through deterministic identifiers, such as login information. For instance, if a user logs into web-based email on two devices (a laptop and mobile phone, for example), the email service can determine that the two devices belong to the same user.

The second way is probabilistic identification, which uses information collected from separate devices (such as an IP address, location, and activities on those devices) to infer that the devices are used by the same person.

At the FTC workshop, panelists, FTC staff and FTC Chairwoman Edith Ramirez all expressed concern that cross-device tracking is inherently different from tracking users on a single device. In particular, they noted that, while the technology provides benefits to consumers (such as a seamless cross-device experience), it has the potential to be harmful from a privacy perspective because it crosses physical borders that consumers may intentionally establish between their devices. That is, consumers may not want anybody to know that their work devices, their personal laptops, and their tablets all reflect activities by the same person.

The FTC seemed to differentiate two aspects of information collection and use related to cross-device tracking: (1) information collected and used for the purposes of tying two or more devices to the same user and (2) information collected and used for IBA purposes, which may include information collected to tie devices together.

At its workshop, the FTC appeared to signal that it expects companies to provide a robust notice and choice regime not only with respect to the ways in which data is collected and used to facilitate cross-device tracking (i.e., to simply tie devices together), but also with respect to the use of data collected and collated across devices for IBA purposes. That is, first parties (such as website publishers and apps) should disclose that information may be collected from users for purposes of cross-device tracking, and users should be able to opt out of the collection of information from a device for purposes of linking it to other devices—and not just for purposes of IBA.

Furthermore, FTC staff also suggested that a failure to precisely describe the scope of an opt-out (such as by suggesting that opting out of cross-device tracking by a user from one device would propagate to all of the user’s devices) may be considered an unfair or deceptive practice in violation of Section 5 of the FTC Act.

The new DAA cross-device principles do not go as far as the FTC would appear to like, but they do apply the DAA notice and choice regime to cross-device tracking. (For more on this regime, see our June 19, 2015 Privacy Minute on the DAA’s mobile guidance.) As a result, the new guidance require entities that collect data for IBA purposes from one device for use on a different device to provide notice that, among other things, “data collected from a particular browser or device may be used with another computer or device that is linked to the browser or device on which such data was collected.” In other words, users need to be provided with notice if their browsing activity on one device may be used to deliver advertising to them on another device.

In addition, the principles affirm that users must be provided with choice regarding the collection and/or use of their information for IBA from a particular device or from sharing with another party. That is, instead of requiring a global opt-out, which is what the FTC seems be advocating, the DAA requires only a device specific opt-out from: (1) collecting data on the device to deliver IBA on another device and (2) delivering IBA on a device based on information collected on another linked device.

In light of the DAA’s foray into cross-device tracking, and the FTC’s heightened interest in this space, companies should tread cautiously if they track and/or target users across devices.