The FTC has advocated for the creation of a central website where marketing information service providers (FTC calls them “data brokers”) would be listed, with links to these companies, their privacy policies and also choice options, giving consumers the capability to review/amend the data that companies maintain.
The FTC claims that such a website would bring needed transparency to the practices of companies that are not well-known to consumers. However, the proposal raises many more questions than it answers.
The FTC first discussed this proposal in its 2012 report, entitled “Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers,” and FTC Commissioners and staff have repeatedly cited the need for a centralized website in testimony before Congress and speeches to stakeholder groups. The proposal was also referenced in December 2013 reports issued by the Government Accountability Office (GAO) and Senate Commerce Committee.
The concept seems simple, but it would almost certainly have the unintended effect of confusing consumers and eroding trust in e-commerce. Experian believes there are alternatives that would work better to improve consumers’ understanding of the role information providers play in the US economy, and how consumers can control the use of data held by these companies.
No clear definition of a “data broker”
The FTC’s central website proposal is based upon the mistaken presumption that there are only a few large companies in the marketplace that would be subject to these requirements. Unfortunately, the FTC has been unable to clearly define “data broker” in a manner that does not sweep in companies occupying large swaths of the economy.
In December 2013, the GAO admitted as much, noting that “determining the precise size and nature of the industry can be difficult because definitions for resellers vary.”
The Direct Marketing Association (DMA) estimates that even a narrow definition of a marketing information service provider is likely to include more than 2,500 companies from all sectors of the economy. Of course, more broadly, tens of thousands of US businesses that share and use consumer data to deliver products and services to their customers will be significantly impacted.
Simply put, the entire data industry – extremely vital to the US economy — cannot be neatly or accurately identified and then subjected to unrealistic requirements of a single website.
A single website doesn’t provide consumers with meaningful disclosure
Due to the lack of a narrow definition of a “data broker,” the potential scope of coverage is unlimited. As the GAO found in its report, the industry for consumer data is generally separated into four broad categories.
These categories are truly industries in themselves, including: those providing fraud prevention services; those helping businesses make credit eligibility decisions; those providing consumer look-up services (i.e. telephone directories); and those that provide information for marketing and advertising purposes.
As a way of limiting the scope of the proposal, the FTC has suggested that only the leading “data brokers” would be required to be included on the centralized website. This is counterintuitive, as it is these very industry leaders that have comprehensive compliance and disclosure measures already in place.
It is also these industry leaders that follow robust laws (such as the Fair Credit Reporting Act), regulations (such as FTC’s Section 5), and also adhere to strong self-regulations (such as those required by the Direct Marketing Association).
Further, having only a fractional portion of the industry make disclosures would not help promote greater transparency. Instead, the companies that consumers are least aware of – literally dozens and dozens of smaller data providers with long histories of questionable practices — would be free to operate outside the norms of self-regulation and best business practices. Again, these are the companies upon which the FTC truly needs to set its sights through enforcement of existing laws and regulations.
The proposal’s content and format requirements remain undefined
The FTC’s proposal is premature in other respects as well, raising questions about what information companies would be required to provide to consumers and in what formats. For example, here are just a couple of key considerations not currently addressed by the FTC’s proposal:
- Would data brokers be required to provide consumers the right to view and correct data about them?
- How would the data be presented to consumers? Would it be in standardized formats? Would it include an explanation of the context of how the data is used?
This gets at the heart of enabling consumers to view the data in a way that is informative, meaningful and easy for them to understand, and yet the FTC hasn’t addressed them in its proposal.
Better alternatives exist to increase transparency
There are much better options available to consumers that would allow for enhanced transparency. These alternatives would also avoid great expenses that would be borne by both the government and a vital industry in the operating of a website with little or no benefit to consumers.
First, companies that collect and share consumer information for marketing purposes should voluntarily adhere to the DMA’s ethical guidelines, which require companies to provide robust notices to consumers and honor consumers’ choices to opt-out of having their data used for solicitations.
The guidelines also require that marketing information be used only for marketing purposes. In addition, consumers who wish to have their data removed from marketing databases can choose to do so through existing opt-out mechanisms. These are available through numerous venues, including both companies’ own websites (see Experian’s own opt-out website), as well as through the DMA.
We also believe that regulatory agencies should enforce existing laws against companies engaged in unfair or deceptive practices marketing and lending practices.
Finally, Experian continues to play a leading role in improving the industry’s efforts to increase transparency and consumer understanding. For example, we’re working with DMA to improve its self-regulations in this area. Revisions to the guidelines will provide an immediate, workable, and enforceable way to increase the transparency and consumer understanding of data broker practices.