Sen. Jay Rockefeller (D-WV)
Three U.S. Senators and two bills in the U.S. Senate appear poised to change the basic rules for anyone involved in using Internet, email, or social media services.
Senator Jay Rockefeller’s Do Not Track Act of 2011 and the Commercial Privacy Bill of Rights Act of 2011 sponsored by former presidential hopefuls John Kerry and John McCain would limit marketer’s ability to track online behavior, and give consumers new rights to review the data collected about them, and make changes to that data.
The bills expressly target the use of cookies, location tracking, and other technologies that monitor online behavior without the explicit knowledge of the user. They could also affect other forms of tracking, such as collecting data about links, clicks, and email open/read/forward activity.
Consumer watchdog groups generally support the two bills although the American Civil Liberties Union feels that neither bill goes far enough in protecting individual privacy. Industry groups and major Internet corporations are divided on the two bills.
Representatives from the Interactive Advertising Bureau (IAB), which recently announced record 2010 full-year Internet ad spending, expressed concern that both proposals provides the FTC with too much discretion in drafting and implementing rules. One area of marketing likely to be affected by both bills are contextual or behavioral ads, and according to IAB and PricewaterhouseCoopers, these ads accounted for $12.1 billion in advertising in the first half of 2010.
Sen. John McCain (R-AZ)
“We are concerned with the provisions in their proposal that would impose strict new requirements on first-party sites to allow their users to access, correct and delete data collected by that site,” said Mike Zaneis, senior vice president and general counsel of the IAB. “These types of first-party restrictions were explicitly rejected by the FTC and are unnecessary to protect consumer privacy, but would severely hurt publishers.”
The Direct Marketing Association’s CEO Larry Kimmel has also expressed concerns about both bills. “The devil is in the details. How do you carry out this major change in the way we use online media without imposing a myriad of new regulations and hurdles on companies?,” Kimmel said.
Sen. John Kerry (D-MA)
DMA Vice President Linda Wooley talked at length about the potential compliance costs associated with the legislation in an interview with Search Compliance. Wooley said that the direct marketing industry is split over the bill.
Within the technology industry, there is a distinct split, with Microsoft, HP and Intel favoring the bills, and Cisco, IBM, and Google opposing it. Google, Firefox, Microsoft, and Mozilla have all announced plans to build “do not track” technology into their browsers.
The primary concern according to news reports is how the Do Not Track bill would affect marketer’s ability to monitor consumer reaction to messages, and the ability to deliver Web content based on that tracking. Google Analytics and other tools that monitor consumer behavior online rely on tracking data to deliver information that helps marketers measure messages.
Senator Rockefeller told the Wall Street Journal that he carefully considered industry needs when he added an exemption to the bill for information that is “necessary to deliver” a product or service, so long as the information is anonymized and deleted when no longer needed to deliver the product or service.
Passage of both bills is uncertain. No elected official wants the label “soft on protecting consumer privacy” in the aftermath of well-publicized data breaches at Sony, Epsilon, and TJ Maxx.
One thing that is clear is that marketers and marketing automation vendors are going to have to pay close attention over the coming months as the two bills have the potential to affect every kind of online, email, and social media marketing campaign.
Photos from the U.S. Senate Press Office; used with permission.
# # #
Join us for a free webinar on May 19: Marketing & Compliance in a Regulated Environment. Click here to get more information and register.