2011: The Year of Privacy?

When people wind up to write the postmortems for 2011 a year from now one item that may be high on their lists of milestones and trends is privacy. The FTC and the Obama Administration have indicated that they’re going to take action to varying degrees. The lawyers and private litigants are also circling with class actions, most recently filed against Apple and app developers for capturing unauthorized personal data from users.

The IAB and MMA are trying to avert formal regulation by tightening standards around consent and exploitation of user data. It’s very unlikely to be enough to stave off new privacy rules however. In my mind, there are two big questions around privacy that will play out next year:

  • What sorts of real-time disclosures will publishers and marketers need to make to end users? (Disclosures buried in boilerplate TOS/Ts&Cs won’t fly.)
  • What sorts of penalties will exist for violations of any new rules?

I think that the FTC and Obama Administration will “throw a bone” to marketers and publishers and not require “opt-in” programs. But if “informed consent” to targeting and data collection are objectives disclosures are going to need to be a great deal simpler and more obvious than they are today. Even Yahoo and Google’s “interest-based ads” privacy pages are too complex in my view. Of the two Google does a better job because the language and presentation are more straightforward.

Unless lobbying can divert or undermine the momentum of what’s happening, marketers, publishers and ad networks are going to get hit with some constraints that may severely limit what they can collect and then what they can do with user data. Meanwhile a new generation of “do not track” tools will arrive and go mainstream.

We’re likely to see a kind of cat and mouse game develop between those offering or selling ad-blocking and anti-tracking software and publishers and marketers on the other side, which are ever more hungry for data. Publishers and ad networks will need to “educate” consumers (perhaps at great cost to themselves) on the benefits of allowing cookies and ad targeting. But that education process may also highlight and raise awareness that consumers are being tracked and produce more negative reaction.

First party cookies will probably survive but the ability of publishers to use that data without explicit permission may be severely curtailed.

These scenarios and potential restrictions will affect almost everyone except search marketers and search marketing. My view, which may seem severe, is that potential new rules and penalties could permanently change the nature of online (and maybe mobile) advertising and marketing. We’ll have to see; but 2011 will almost certainly bring more clarity — and federal action.

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