Earlier this month, a bill was introduced to both the House and the Senate that would effectively prevent digital ads from being targeted with any data other than contextual signals or user location. The Banning Surveillance Advertising Act (BSAA) was sponsored by Representative Anna G. Eshoo (D-CA) and co-sponsored by Representative Jan Schakowsky (D-IL) and Senator Corey Booker (D-NJ), and, if passed, it would forcefully and dramatically upend the digital advertising industry. Support for the bill was expressed by the Electronic Privacy Information Center (EPIC), the Anti-Defamation League, Common Sense Media, and Accountable Tech, which last year filed a petition with the FTC to “prohibit the anticompetitive practice of surveillance advertising.”
The term ‘surveillance advertising’ is dysfunctionally vague and unhelpful, as I detail in this article (the title of which is admittedly designed to induce clicks). To my mind, the term ‘surveillance advertising’ describes the first-party / third-party feedback loop of the hub-and-spoke model for advertising targeting that I describe here, but the BSAA bill is more aggressive than merely disrupting the flow of user data across contexts: the bill would prevent any behavioral or demographic data from being used to target ads to users, allowing only for contextual and geographical targeting (and some restrictions around the use of geographical targeting are identified in the bill’s text).
The BSAA bill is a quick read at just 20 pages, but as a broad overview:
- The bill prevents ad networks and ad platforms (what the bill terms advertising facilitators) from targeting ads to users, or from knowingly allowing advertisers to target ads to users through (1) the provision of user or device lists, (2) the contact information of users, (3) unique identifiers that might be connected to individuals or devices, or (4) other personal information that could identify specific users;
- The bill prevents advertisers from using any data to target ads to users that was purchased from or otherwise obtained from a third party, or that identifies the user as being a member of a protected class, which the bill defines as: “actual or perceived race, color, ethnicity, national origin, religion, sex (including sexual orientation and gender identity or gender expression), familial status, or disability of an individual or group of individuals”;
- Notably, the bill allows for advertisers to utilize data they have collected from users directly to target ads, so long as the advertiser provides a written attestation to the ad network or ad platform that the data being used was not purchased from a third party and that it doesn’t identify an individual as being a member of a protected class;
- The bill empowers the FTC and states’ attorneys general to enforce the bill, and it includes a private right of action that allows for fines to be levied in cases of violation.
Two days after the bill was introduced, the European Parliament voted to approve the initial draft of the Digital Services Act (DSA), which would similarly restrict the scope and use cases of targeting for digital advertising. Among other restrictions, the DSA prevents ad platforms from using sensitive information to target ads to individuals, and it requires that users be given the opportunity to opt-out of ads personalization.
The lack of a consent condition is my primary objection to the BSAA bill: my belief is that any legislation related to the general governance of ads targeting should be predicated first on user consent. If ads targeting is to be regulated, those regulations should allow users to determine for themselves whether they want to surrender data to ads platforms and other intermediaries for the sake of improving the relevancy of the ads to which they are exposed. On that point, my protestations against Apple’s App Tracking Transparency (ATT) privacy policy have focused predominantly on the fact that the loaded language used in the ATT opt-in prompt — especially in contrast to the opt-in prompt that Apple uses for the ads personalization mechanism for its own ad network — ultimately robs users of the opportunity to make an informed choice about their data.
But beyond a philosophical disagreement with the way that user consent is treated, the BSAA bill raises a larger question:
How might the BSAA bill pay for…
