As do not track (DNT) continues to gain steam, the affiliate marketing industry needs to consider the impact upon its business model if DNT should be become a reality and widely adopted.

1. Presentation to Performance Marketing Summit
DO NOT TRACK
VS.
AFFILIATE MARKETING
March 12, 2013
Gary A. Kibel
Partner
Technology, Digital Media & Privacy
212.468.4918
gkibel@dglaw.com
@GaryKibel_law
0 [Presentation Title Goes Here – Type it in the Master Slide]
© 2013 Davis & Gilbert LLP

2. BEHAVIORAL ADVERTISING
»Federal Trade Commission – December 20, 2007
Online Behavioral Advertising – Moving the Discussion
Forward to Possible Self-Regulatory Principles
1. Transparency and consumer control
2. Reasonable security, and limited data retention, for
consumer data
3. Affirmative express consent for material changes
to existing privacy promises
4. Affirmative express consent to (or prohibition
against) using sensitive data for behavioral
advertising
1 Do Not Track vs. Affiliate Marketing

3. BEHAVIORAL ADVERTISING
»Federal Trade Commission (Staff Report) –
February 2009
- Generally maintained the 4 principles
- Excluded “first party” behavioral advertising and
contextual advertising from the principles
- Distinction between PII and non-PII is no longer
determinative
- Data retention = only as long as necessary
- Be creative for non-web site disclosures
- Did not resolve the opt-in vs. opt-out debate
- Did not further define “sensitive data”
2 Do Not Track vs. Affiliate Marketing

4. BEHAVIORAL ADVERTISING
AAAA / ANA / DMA / IAB – July 2009
»7 principles: Education; Transparency; Consumer
Control; Data Security; Material Changes;
Sensitive Data; Accountability
3 Do Not Track vs. Affiliate Marketing

5. DIGITAL ADVERTISING ALLIANCE (DAA)
WWW.ABOUTADS.INFO
»Self-Regulatory Principles for Online Behavioral
Advertising
»License Icon
»Implementation
- Evidon
- TRUSTe
4 Do Not Track vs. Affiliate Marketing

7. WORLD WIDE WEB CONSORTIUM
(W3C) DO NOT TRACK
»DNT refers to interactive companies honoring a
user’s browser preference settings to stop online
tracking through the use of cookies and other
technologies by all sites through that user’s browser
(rather than opting out of tracking site by site)
»W3C is working with browser vendors and industry
groups for the “complete implementation of an easy-
to-use, persistent, and effective Do Not Track
system”
»Participants in the W3C include representatives of
Apple, AT&T, eBay, Google, Microsoft, Yahoo!
among others
6 Do Not Track vs. Affiliate Marketing

8. WORLD WIDE WEB CONSORTIUM
(W3C) DO NOT TRACK
»Many open issues remain regarding
implementation, exceptions and response to
receiving a DNT signal
»1st Parties vs. 3rd Parties
»1st Party must not pass data to a non-service
provider 3rd Party
»Financial logging permitted
7 Do Not Track vs. Affiliate Marketing

9. THE BROWSERS
Microsoft IE Apple Safari
announced that Blocks third
Internet Explorer 10 party cookies
will have DNT turned
“on” by default
Mozilla Firefox Google Chrome
announced patch Functionality
to Firefox version 22 built in
to block third party
cookies
8 Do Not Track vs. Affiliate Marketing

10. SEN. JAY ROCKEFELLER (D)-WV
»Do Not Track Online Act of 2013
»Orders FTC to implement regulations that
“establish standards for the implementation of a
mechanism” for consumers to simply and easily
indicate a preference to have PII collected by
service providers
»Exceptions for collection that are necessary to
provide a service requested by a user
9 Do Not Track vs. Affiliate Marketing

11. FEDERAL TRADE COMMISSION ACT §5
»“Unfair methods of competition in or affecting
commerce, and unfair or deceptive acts or practices
in or affecting commerce, are hereby declared
unlawful.”
- Deception = Misrepresentations or omissions
likely to mislead consumers acting reasonably
under the circumstances
- Unfairness = Causes or is likely to cause
substantial consumer injury, not reasonably
avoided by the consumer, and not outweighed by
countervailing benefits to consumers or
competition
10 Do Not Track vs. Affiliate Marketing

12. INTERNATIONAL ISSUES
»European Union – New Rules Regarding Cookies
»Old rule – Cookies may not be dropped unless the
user is given “clear and comprehensive” information in
relation to the purposes for which cookies will be used,
and the user is offered the opportunity to refuse the
use of cookies
»New rule – A cookie may only be dropped if the
relevant user “has given his or her consent, having
been provided with clear and comprehensive
information…”
11 Do Not Track vs. Affiliate Marketing

13. UK INTERPRETATION –
EU COOKIES
»Category 1: Strictly Necessary Cookies
- i.e., Shopping cart
»Category 2: Performance Cookies
- How users interact with a website
»Category 3: Functionality Cookies
- Personalized features
»Category 4: Targeting Cookies or Advertising
Cookies
- Behavioral advertising
12 Do Not Track vs. Affiliate Marketing

14. QUESTIONS?
To receive D&G Advertising, Marketing & Promotions newsletters,
email gkibel@dglaw.com
Gary A. Kibel
Partner
Technology, Digital Media & Privacy
212.468.4918
gkibel@dglaw.com
@GaryKibel_law
13 Going Mobile:and Privacy Law
Social Media Smartphones, Tablets and Mobile Apps