Earlier this week, the organization that enforces the Digital Advertising Alliance’s Self-Regulatory Principles for Online Behavioral Advertising issued a “Compliance Warning” to website operators, advising them to provide “enhanced notice” on every web page where data is being collected or used for online behavioral advertising (“OBA”) by January 1, 2014. 

The DAA defines OBA as “the collection of data from a particular computer or device regarding Web viewing behaviors over time and across non-Affiliate Web sites for the purpose of using such data to predict user preferences or interests to deliver advertising to that computer or device based on the preferences or interests inferred from such Web viewing behaviors.”  According to the Principles,  websites that engage in (or more likely, permit third parties to engage in) OBA must do the following: 

1. Provide “a clear, meaningful, and prominent link on the Web page” where data is being collected or used for OBA purposes that is separate from the website’s privacy policy.  This is the so-called “enhanced notice” requirement to which the Compliance Warning referred.  The link should indicate that OBA is taking place on the page by, for example, displaying the DAA’s Advertising Option Icon.  While many website publishers already include links to their privacy policies on their websites, the DAA emphasized that such links are insufficient and that a separate “enhanced notice” icon or link is what the Principles require.  
2. Make the link direct a user to the place in the website’s privacy policy that describes the site’s OBA practices and that points to an “industry-developed Website,” such as aboutads.info, where consumers can opt-out of receiving behaviorally targeted ads.  Alternatively, the website operator can individually list all third parties that collect or use data for OBA purposes on the site.  The Compliance Warning noted that if a website chooses to employ the latter option, it should link to an opt-out mechanism provided by each third party listed. 
3. State that the website adheres to the Principles.  Although this seemingly is a minor requirement, website operators should note that the FTC has taken action against companies that misrepresent compliance with industry self-regulatory programs, on the ground that such misrepresentation is a deceptive practice that violates Section 5 of the FTC Act.

The Compliance Warning concluded by advising that a website operator that fails to comply with the Principles by January 1, 2014, could face a formal compliance review, a procedure that can result in referral to the FTC for uncorrected non-compliance.