How changes to consumer privacy law might impact marketers and martech

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TVs are “spying” on us, and so are sex toys. The Senate also just reversed an Obama-FCC rule that imposed limits on what ISPs and carriers could do with consumer data without consent.

The new administration and Republican control of Congress could bring massive change in regulatory policy and consumer protection. Indeed, many of Trump’s cabinet appointees have pledged to scale back or dismantle the regulatory frameworks of their respective agencies.

The new political environment has led people to question the future of consumer protection and privacy enforcement under the federal government. And it makes it much less likely that there will be any new consumer privacy legislation in this vastly more pro-business Congress.

Might this turn out to be a boon for digital marketers, who could face less scrutiny of their use of consumer data for targeting, tracking or attribution? Or could it have unintended consequences and make digital platforms and publishers’ lives more complicated?

The Future of Privacy Forum’s Stacey Gray thinks that if the government generates no new consumer privacy legislation or limits the ability of regulatory bodies to protect consumer privacy, we are likely to see state legislatures and Attorneys General step in. She says California, and several other states that have strong consumer privacy laws, may seek to fill the void and regulate digital marketing.

There could also be more private litigation seeking to protect and enforce consumer privacy.

Gray also argues that the platforms (e.g., Apple) will move to fill perceived gaps in consumer protection. For example, in iOS 10, the iPhone’s IDFA is “zeroed out” for users who limit ad tracking. That means data collection for targeting or attribution becomes much more challenging to obtain.

The recent enforcement action against TV maker VIZIO is a potential model of what may come. The company was forced to pay a $2.2 million penalty based on the improper collection of consumer viewing habits and data without consent. The company was also forced to submit to ongoing third-party privacy and compliance assessments. The FTC and New Jersey Attorney General were partners in the action. But it could have been brought by New Jersey alone.

So-called “smart vibrator” maker We-Vibe paid nearly $4 million after it was found that the company collected individual-level usage data without consent. The payment came in the form of a settled consumer class-action lawsuit.

Should the FTC and the federal government drop out of consumer privacy enforcement for the duration of this administration, states have the authority to take its place. But the unintended consequence might be enforcement of differing privacy and consumer protection standards and laws by multiple states.

(In addition, US firms will need to comply with the EU’s General Data Protection Regulation.)

The rational response for marketing technology companies will be to adopt the strictest state rules as a standard and adhere to those across all 50 states. Regardless, in the coming months and years, we’re very likely to see a number of states and their Attorneys General eager to compensate for the absence of federal leadership on consumer protection and privacy.

Although it may appear more business-friendly, the new anti-regulation climate in Washington could result in new unintended consequences and challenges for martech companies and digital marketers.


About The Author

Greg Sterling is a Contributing Editor at Search Engine Land. He writes a personal blog, Screenwerk, about connecting the dots between digital media and real-world consumer behavior. He is also VP of Strategy and Insights for the Local Search Association. Follow him on Twitter or find him at Google+.

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