FTC Releases Cross-Device Tracking Guidance

Privacy & Cybersecurity Newsletter
May 2017

In January, the Federal Trade Commission (FTC) released guidance that will be of interest to companies that utilize cross-device tracking. Cross-device tracking refers to a company’s ability to link a consumer’s behavior on a website or an app to their behavior on a smartphone, tablet, television, laptop or other device. Simply put, cross-device tracking is the technology responsible for placing that vacation ad on your smartphone when you only researched vacations on your desktop browser.

The guidance warns that failure to disclose cross-device tracking activities to consumers could violate the FTC Act. Consistent with longstanding principles, the FTC recommends that a disclosure explains that cross-device tracking is being utilized, as well as what information is being collected, by what entities, and how it's used. For example, the guidance specifically cautions companies against stating they do not share "personal information" with third parties if they provide usernames or email addresses (raw or hashed) to cross-device tracking companies.

Additionally, the guidance recommends providing choices on how consumer activity is tracked across devices, including opt-out tools. While the guidance stops short of requiring opt-out tools, companies that provide opt-out tools should clearly disclose their existence, along with any limitations on how they apply. For example, if a company’s existing opt-out tools do not apply to cross-device tracking, that should be disclosed.

Finally, the guidance recommends coordination between third-party cross-device tracking companies and first-party, consumer-facing companies. In other words, third-party companies should make the same type of disclosures that a first-party company would make to a consumer.

The bottom line for companies is this: any company that utilizes cross-device tracking should review and revise its privacy policy to ensure that its practices, along with any related choices provided to consumers, are appropriately disclosed.

Glenn G. Pudelka is Counsel in Locke Lord’s Boston office. He can be reached at