Senator Cory Booker and Representatives Anna Eshoo of California and Jan Schakowsky of Illinois introduced concurrent Banning Surveillance Advertising bills on January 18, 2022, in the Senate and House.

What does this mean for marketers?

A quick bill synopsis: 

  • The bills would prohibit advertising facilitators (marketers and agencies) from engaging in, or enabling an advertiser or third party to engage in, targeted advertising using consumers’ personal information (contact information, unique identifiers, or other personal information), which should be noted also includes target groups of individuals and connected devices and protected class information, such as race, gender, and religion.
  • The Federal Trade Commission would be charged with enforcement, but individuals could bring suits against offenders.
  • Contextual advertising and broad geotargeting are excepted from the proposed legislation. In simple terms, this means that advertising based on interest groups would be allowed since it is not based on any personal identifying information (PII).

How does the surveillance legislation become law?

Currently, the bills are in committee, and other than the initial presentations to each chamber, they have not been discussed at length. There are many steps to go before the bill could become law, which could be several years away. This bill is the latest in a series of petitions, proposed legislation at the state level, and even industry actions that will severely limit advertisers’ ability to rely on consumer data that is not freely given in a transparent exchange.

In 2021, 38 states introduced over 160 pieces of privacy-related legislation, with 13 states passing 17 bills. In addition to California, Colorado and Virginia have enacted comprehensive consumer privacy protections.

Building on an Executive Order from July, which encouraged the Federal Trade Commission (FTC) to use its rulemaking authority to establish rules that regulate “unfair data collection and surveillance practices that may damage competition, consumer autonomy, and consumer privacy,” Accountable Tech filed a petition with the FTC  to prohibit “surveillance advertising” as an “unfair method of competition.” On December 27, 2021, the FTC sought public comment on the petition.  Accountable Tech is a nonprofit organization that advocates for social media companies to strengthen the integrity of their platforms.

What should marketers do?

Between the relatively imminent demise of cookies and the spate of potential legal actions, it is really time to rethink the best ways to communicate with customers and prospects in a transparent way.  Consumers are not opposed to sharing data with brands, especially if they gain some sort of benefit, but they do want to know when brands are sharing that data with others. Be sure, in addition to any campaigns driven by PII, that you are also building out your contextual advertising and touch points derived from first-party data. This will offer additional opportunities to build trusting, personalized, and transparent communication and experiences for both consumers and prospects.

Not sure how to shift your marketing strategy from PII based to contextual? Let’s talk. We are here to help.