The Privacy Icon Isn’t an On/Off Switch

To a U.S. consumer, the icon signals the availability of information on and control over how his or her data is being used, while providing assurance that the companies involved are being held accountable by the self-regulatory program.

Some have suggested that the icon should indicate that the ad is behaviorally targeted and that if a consumer opts out of targeting through the icon, then the icons should disappear across the internet to indicate the industry’s immediate and universal processing of the consumer’s request. This is a laudable goal, but it isn’t technologically feasible, and over time, it would limit the icons’ effectiveness as a consumer-privacy tool.

From my perspective, and that of a number of our clients, the icon is not an “on/off” indicator. Rather, it’s a sort of nutritional label that describes what is happening in each ad. But for starters, here’s the challenge with the on/off indicator concept: the entire industry cannot be activated on day one, and third-party data collection for research and analytics is much more common than it is for behavioral targeting.

The nature of a self-regulatory program is such that an industry begins with select leaders blazing the compliance trail, and then hopefully, over time, an increasing number of companies join in until compliance is expected, and then it becomes nearly ubiquitous. But a program is never universally adopted immediately, and it can take years, under the best of circumstances, to reach the final stage. The notion that all companies in the industry would be able to coordinate on a universal opt-out request and then respond with the technical systems to show the consumer, visually, that they are honoring this request, during the earliest stages of program adoption, is obviously impossible.  In the mean time, it would be extremely unhelpful to the consumer for the industry to respond in a fractional manner (i.e., with some icons disappearing).

Self-regulatory principles require a company to provide an icon on ads that are behaviorally targeted, as well as on ads on which data is being collected that may be used for subsequent targeting. Most estimates place the percentage of ads that are targeted at somewhere between 10 percent and 20 percent of online display ads. But increasingly, ads are being placed or delivered by platform companies that are collecting data for subsequent targeting. In fact, most industry estimates place the percentage of ads that fall into the latter category in the 70-80 percent range, and rapidly growing. This puts the icon, once the program is fully mature, on the vast majority of ads. The icon would quickly become a standard feature of online ads, and it would lose any significance as a signal that one ad was different from the others. And as the percentage grew, the investments required of each company to eliminate the icon from non-behavioral ads would seem increasingly wasteful.

In part due to these operational considerations, the industry has led with an expanded scope for icon use, and this is good for the consumer. The notion that only behavioral advertising should be disclosed, and not a range of other activities that rely upon third-party tracking, requires legalistic distinctions that are lost on the average consumer. Why shouldn’t consumers see notice of research firms that are identifying their browsing history or of marketing analytics firms that are tracking their behavior across websites? There are many firms that are using the icon as a platform for broad disclosures of third-party (and even first-party) tracking, and it is very hard to argue that this additional information and control is bad for the consumer. Regulators across the board have called for industry to be innovative with new forms of disclosure, and here we see the industry responding. In Europe, this level of disclosure looks to be the standard. With so many brands being global, why shouldn’t a broader and more comprehensive level of disclosure apply?

The icon has become, in effect, a nutritional label that consumers can access to learn about the companies behind an ad or Web page, and if they chose, to take control. In a world where behavioral advertising represents a fraction of third-party data uses, but just about every ad has some form of third-party data collection, this is a much more useful icon for the consumer. And for companies facing an expanding scope of required disclosure in jurisdictions like Europe,and potentially new categories of disclosure in the U.S., this is now an icon that is ready to keep pace with emerging requirements. The alternative would be a series of icons that would need to decorate ads and pages like Boy Scout badges, befuddling consumers and adding tremendous complexity to compliance.

So take note of this – the industry self-regulatory program is maturing. Our little icon is growing up, and both our industry and consumers are better off for it.