FTC “No Track” Impact on Affiliate Marketing

Becky Doles

Last week I had the privilege of sitting in on a discussion hosted by the Performance Marketing Association (PMA), regarding the recent FTC’s “Do Not Track” Proposal.  I was very impressed by the number of experienced and articulate individuals present in the discussion, and it certainly gave me several things to ponder over for the rest of the afternoon.

It seems that a majority on the call believed these new regulations are highly influenced by recent European regulations, and though I believe there are other domestic players involved, it does seem to be a timely answer to European rulings.  However, United States commerce is fundamentally different to these smaller, less capitalistic economies, and I believe the FTC will see the value of tracking users for the advancement of research, content, news, and even entertainment (the sole income for most of these web entities being advertising).

I don’t think the FTC is really targeting the affiliate marketing industry specifically.  Rather, they are interested in preventing those that control some of the largest distribution channels from mining data and selling it as behavioral user data.  Most user tracking actually makes everything simpler for the user, allowing them to easily navigate between webapps, view enormous bodies of content at no cost, and experience entertainment on demand, which is why a “no track” plugin on a web browser will frustrate users more than protect them.  The FTC is really more concerned about the abuse of behavioral advertising, the sort of data that is sold for the ability to trick users or even steal identities, and I agree that we need to improve regulation to prevent this.

Below I have included a copy of the 7 major areas which the PMA will question/challenge in a response to the FTC. (Minutes compiled by Rebecca Madigan, PMA Executive Director)

1.  Handling of legacy data: the duration of an acceptable archive period, opt-ins regarding storage of data, reasonableness of proposed data security practices

2.  Aggregation of data: 3rd party combining of multiple consumer profiles for behavioral targeting, data passing via APIs

3.  Do-Not-Track options for consumers: viability of the extent of ‘Do-Not-Track’ options, impediments to quality of service and fraud detection

4.  Machine-readable privacy policies: the burden to businesses, particularly small businesses

5.  Designation of affiliates and commonly accepted practices of data collection: viability of consumer opt-in of affiliate links and data sharing with merchants

6.  Anonymity/uniqueness of data versus personally identifiable information (PII): protect information required for cookies, and draw a clear distinction between unique identifiers and PII

7.  Deep packet inspection: giving consumers opt-out capabilities will limit ability to detect fraud (particularly malware and worms)

Next Steps

Why am I writing about this?  For you to get involved.  The PMA is setting up an ongoing discussion group that will tackle some of these issues.  PMA members are urged to examine Exhibit A of the FTC’s proposal to better identify areas of dispute, and these comments will be presented at the PMA Member Meeting on January 10th by Sarah de Diego, taking place at Affiliate Summit West, Las Vegas.  A formal response will be submitted to the FTC before the deadline of January 31, 2011.

What can you do?

If you are already a member of the PMA, please make sure you get involved in this discussion by offering your input.  It not only impacts how the government might possibly regulate our industry, but it may also impact new directions your business should consider for the long term.  If you are not a member, please feel free to email [email protected] with any input you have on the FTC’s proposal, and we will be sure to include your voice in our discussions.  We value your input because HasOffers is here to help you continue growing your business.

You can read more about this on the PMA blog or in an recent article found on

Becky Doles

Becky is the Senior Content Marketing Manager at TUNE. Before TUNE, she led a variety of marketing and communications projects at San Francisco startups. Becky received her bachelor's degree in English from Wake Forest University. After living nearly a decade in San Francisco and Seattle, she has returned to her home of Charleston, SC, where you can find her enjoying the sun and salt water with her family.