By: Richard S. Eisert, Partner, Advertising, Marketing & Promotions Practice Group at Davis & Gilbert; and Paavana L. Kumar, Associate, Advertising, Marketing & Promotions Practice Group at Davis & Gilbert.
For the past two years, the Digital Advertising Alliance (“DAA”) has been actively scrutinizing the ways in which companies collect, use, and disclose their use of consumer data in the mobile environment.
In July 2013, the DAA released its Application of Self-Regulatory Principles to the Mobile Environment (the “Mobile Principles”), which provide guidance on how the DAA’s previously issued Self-Regulatory Principles for Online Behavioral Advertising (the “OBA Principles”) apply to mobile applications and web browsers. Since then, the DAA has unveiled plans for new mobile applications that will provide consumers with an additional means to “opt out” of behavioral advertising on mobile devices. In tandem, the Better Business Bureau has been cracking down on companies for not providing “clear, meaningful and prominent” notice (or “enhanced notice”) to consumers on all website and mobile pages where OBA data collection is taking place. Nevertheless, the DAA’s position since July 2013 has been that the Mobile Principles are subject to an “implementation phase,” or grace period, during which it may not be possible for all companies to comply with the Mobile Principles across all devices.
Official Enforcement: Effective September 1
Now, the DAA has announced that official enforcement of the Mobile Principles will begin on September 1, 2015. As such, companies and marketers engaging in OBA activities or collecting specific categories of data on mobile devices will be subject to the DAA accountability mechanisms, managed by the BBB, if they do not comply with the Mobile Principles. For example, these entities will be held to notice and choice obligations appropriate to the nature of the data and the purpose for which it is being collected – whether application usage data, personal directory data (such as calendar and address book data) or precise geolocation data is implicated – and all three categories require varying levels of user consent.
As such, going forward, companies engaged in online behavioral advertising need to ensure that they are not only engaging in best practices with respect to the general themes of transparency, consumer control, data security and accountability already set forth by the DAA, but also staying closely tuned to the type of data they are collecting and for what purpose it is being used, in order to evaluate, monitor and enforce compliance with the applicable sections of the Mobile Guidelines.
Richard S. Eisert is a partner in the Advertising, Marketing & Promotions Practice Group of Davis & Gilbert. He may be reached at 212.468.4863 or firstname.lastname@example.org. Paavana L. Kumar is an associate in the Advertising, Marketing & Promotions Practice Group of the firm. She may be reached at 212.468.4988 or email@example.com.