Departing FTC Commissioner Pans Digital Ad Industry's Privacy Program

Collapse of Do-Not-Track Standards in 2013 Partly to Blame for Ad Blocking, Brill Says

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Julie Brill.
Julie Brill. Credit: Courtesy FTC
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Julie Brill thinks the ad tech industry could do better.

A strong voice for consumer privacy during her six-year tenure leading the Federal Trade Commission, the commissioner has stepped down to to join law firm Hogan Lovells as a partner and co-director of its Privacy and Cybersecurity practice on April 1. On her way out of government, she shared her thoughts on the demise of Do Not Track, plus a critique for the digital ad industry's approach to consumer data privacy.

"I still think that the ad tech industry in particular can provide consumers with robust, meaningful and useable tools so that they can make choices with respect to data collection and use," Ms. Brill told Ad Age.

But she suggested that the ad industry's self-regulatory body for digital privacy, the Digital Advertising Alliance, fell down on the job when it created the AdChoices privacy program. The triangular AdChoices icon on digital ads was supposed to invite consumers to learn about how the ads were targeted and opt out if they like, but it hasn't met that goal, according to Ms. Brill.

"I've long said that I don't think consumers understand it," she said.

"I don't think they interface with it," she added. "When you do interface with it, it's clunky. I'm glad it exists but I think it could be vastly improved."

Today, digital advertisers are battling a rise in the use of ad blockers that's fueled by consumer concerns including privacy. The breakdown in 2013 of an effort to establish a standard Do Not Track mechanism is partly to blame, she suggested.

"We've seen an incredible rise in consumers taking matters into their own hands, which is precisely what I said would happen back then," Ms. Brill said.

"In some ways I think that effort fizzled because the multi-stakeholder process broke down," said Ms. Brill. "There were entities involved that weren't supporting the direction the group was heading and withdrew from the effort. It would have helped industry and consumers to have some rules of the road in online tracking."

When Ms. Brill joined the FTC in 2010 after serving as chief of consumer protection for the State of North Carolina, development of a Do Not Track standard looked feasible, and the comprehensive privacy legislation long sought by the FTC seemed inevitable.

Now, privacy legislation that would establish stricter rules for consumer data collection and use has been practically forgotten. "Congress has a lot on its plate generally speaking and there are members of congress that have a lot of interest in these issues," she said, referring to digital privacy, data broker practices, data security and breach notification. "As a commissioner I've had the privilege of talking with their staffs, working with them, giving them advice."

Yet as privacy legislation has been relegated to the back burner, the data industry has grown larger and more complex, with countless companies gathering and sharing consumer data in ways that have only been made possible with the advent of cost-efficient cloud storage and computing.

"There is a great expansion" of the data industry, said Ms. Brill, noting that it will always be a challenge for the FTC to keep pace as industry evolves. One way the agency has kept up with industry is by having a chief technologist on staff to work alongside attorneys and others as cases are being developed.

Ms. Brill's departure comes as the FTC's fellow watchdog, the Federal Communications Commission, has proposed consumer data privacy rules for internet service providers and mobile operators, new jurisdiction for the FCC as a result of the agency's adoption of net-neutrality rules for broadband last year.

"What I've said about the FCC jumping into the privacy and data security regulation space is I welcome them," Ms. Brill said. "I know I was quoted in saying they're a brawnier cop. In some ways they are, in some ways we are. We at the FTC have the ability to obtain restitution for consumers. … It's not an authority or a power that the FCC has, so I think we bring different tools to the regulatory landscape."

However, she said she would like to see the FTC be granted oversight of mobile carriers also. "I think all of us at the FTC think the common carrier exception is an anachronism and should be changed, but that would require an act of Congress."