Four Democratic lawmakers are urging the Federal Trade Commission to investigate Apple and Google for building tracking identifiers into mobile devices.

Those mobile identifiers “have fueled the unregulated data broker market by creating a single piece of information linked to a device that data brokers and their customers can use to link to other data about consumers,” Senators Ron Wyden (D-Oregon), Elizabeth Warren (D-Massachusetts), Cory Booker (D-New Jersey, and Rep. Sara Jacobs (D-California) say in a letter sent Friday to FTC Chair Lina Khan.

The letter was first reported by The Wall Street Journal.

"The FTC should investigate Apple and Google’s role in transforming online advertising into an intense system of surveillance that incentivizes and facilitates the unrestrained collection and constant sale of Americans’ personal data," the letter states.

The lawmakers add that Apple and Google "have failed to inform consumers of the privacy and security dangers involved in using those products."

Google's operating system for Android includes an id identifier -- a pseudonymous alphanumeric string -- that developers can access to track people across mobile apps. Android phones have a setting that allows consumers to opt out of receiving personalized ads.

Apple, which also has an alphanumeric identifier (the "Identifier for Advertisers") in its operating system, currently requires companies to obtain consumers' consent before drawing on the identifier for advertising purposes. But the company did not always do this.

When Apple rolled out the first iPhones, they came with unique device identifiers -- comparable to serial numbers -- that developers were able to harness to track users across mobile apps.

The company later replaced those identifiers with an alphanumeric identifier, which Apple calls the Identifier for Advertisers, that users could re-set. Doing so effectively wiped out records of their prior app use, comparable to deleting cookies, but did not prevent future tracking.

Last year, Apple implemented new settings that prohibit developers from accessing that identifier without opt-in consent.

The ad industry opposes Apple's decision to restrict access to the identifier, and has pushed European regulators to investigate whether Apple's settings violate antitrust law.

The lawmakers' letter, written in anticipation of the Supreme Court's decision overturning Roe v. Wade, warned that data brokers “are already selling, licensing, and sharing the location information of people that visit abortion providers to anyone with a credit card.”

They added that people seeking abortions “will become particularly vulnerable to privacy harms, including through the collection and sharing of their location data."

“Prosecutors in states where abortion becomes illegal will soon be able to obtain warrants for location information about anyone who has visited an abortion provider,” the lawmakers wrote. “Private actors will also be incentivized by state bounty laws to hunt down women who have obtained or are seeking an abortion by accessing location information through shady data brokers.”

Hours after the Supreme Court announced its decision reversing Roe v. Wade, Senator Ron Wyden called for a national privacy law protecting people's online and mobile activities.

“Congress must pass legislation protecting people’s data so their web searches, text messages and location tracking aren’t weaponized against them,” Wyden, a Democrat from Oregon, stated.

He added that technology companies “must take immediate steps to limit the collection and retention of customer data so that they don’t become tools of persecution.”

Wyden did not say whether he was referring to any specific pending legislation.

Several privacy bills have been introduced recently, but none of them appear to be comprehensive enough to prevent state law-enforcement officials from obtaining data about people's online activities.

One recent bill -- the “Health and Location Data Protection Act,” introduced last week by Senator Elizabeth Warren (D-Massachusetts) and co-sponsored by Wyden and others -- would prohibit data brokers from sharing information about people's health or location.

Another bill, the “Fourth Amendment is Not for Sale Act” would require government agencies to obtain a court order before buying personal information from data brokers.

That bill would also prohibit law-enforcement authorities and intelligence agencies from purchasing data obtained through deception, as well as through violations of a privacy policy or other contract.

But neither of those two bills would prevent search engine operators, mobile companies or internet access providers from compiling the kind of data that could later be obtained by prosecutors.

The advocacy group Fight for the Future also called for the Biden administration, Congress and the Federal Trade Commission to “do everything in their power to end corporate surveillance, data harvesting, and data retention practices that are weapons perfectly built to persecute abortion patients.”

In addition, the organization reiterated its call for online companies to “end the collection and storage of sensitive location, health, and other data that will be used to apprehend and persecute anyone engaged in the abortion care process.”

Earlier this month, Fight for the Future and dozens of civil rights groups (including Amnesty International USA, Center for Digital Democracy, Electronic Privacy Information Center, Free Press, and S.T.O.P.--The Surveillance Technology Oversight Project) urged Google CEO Sundar Pichai to stop collecting location data from mobile users.

“In a world in which abortion could be made illegal, Google’s current practice of collecting and retaining extensive records of cell phone location data will allow it to become a tool for extremists looking to crack down on people seeking reproductive health care,” the groups wrote. “The only way to protect your customers’ location data from such outrageous government surveillance is to not keep it in the first place.”

While D2C marketers have been relatively slow to invest in connected TV (CTV), their spend has been creeping up along with recognition of CTV’s targeting and ability to measure online and offline conversions in new ways.

The results of a just-released online survey of 175 D2C and direct-to-business marketers by digital media tech company Digital Remedy and first-party data and insights platform Dynata at the end of 2021 provides a snapshot of their 2022 spending plans and attitudes toward CTV/OTT.

On average, respondents reported dedicating 25% of their first-half 2022 budgets to search and social media, 15% to print, and 12% to digital display (chart above).

But at 10% ($878,000) on average, CTV is more or less on par with other secondary sources: 11% for mobile apps, 9% each for digital out-of-home and digital audio, and 8% for linear TV.

And CTV’s share is a bit larger among D2Cs with larger budgets — up to 12% among those with media budgets over $100,000:

Among marketers that allocated some of their media budgets to CTV/OTT in first-half 2021, 43% said they’ll spend more on those platforms in first-half 2022, versus 3% planning to spend less.

And among those that had no allocation to CTV/OTT, no media budget, or weren’t sure of their budgets yet, 29% said they plan to spend on CTV/OTT sometime in the future.

Nearly 50% of D2C marketers who plan to spend more on CTV/OTT in 2022 said it will be the brand’s first time investing in the space.

What would motivate direct-to-consumer and direct-to-business marketers to increase their CTV investments?

Brand-lift measurement was the most-cited motivator (47%, in a multiple-response question).

“Growing DTC brands that are focused on stimulating brand awareness among key consumers might be persuaded to spend more on CTV/OTT, especially if a media partner could provide measurement insights regarding their campaign,” notes the report.

Other leading motivators: higher-quality OTT inventory (38%), real-time optimization (37%), incremental lift measurement (35%), and real-time channel performance reporting (33%).

Nearly a quarter — 23% each — cited custom KPIs and full-funnel attribution. Just 11% said that “nothing” would convince their organizations to increase their OTT/CTV budgets.

At the same time, 42% admitted lack of familiarity with brand-lift measurement, and 48% admitted the same about incrementality measurement.

The researchers point out that while the industry is still dependent on last-touch attribution because of its ease of use, there is growing interest in the incrementality approach — which, rather than assigning credit for a conversion, attempts to identify the causal events or interactions behind conversions. (The goal: Measure the lift in desired outcome that a specific media channel brings to campaign results above native demand — the increase in leads, sales and other key performance indicators/KPIs that would not have occurred without specific marketing efforts and interactions, such as ad views.)

The respondents’ emphasis on brand-lift measurement reflects their key priorities for 2022: increasing brand awareness and sales growth (31% ranked each of these No. 1).

While 23% of D2C marketers say they run more conversion-oriented campaigns than other types, 33% say they run more awareness-focused campaigns, ad 37% say they run an even mix.

But regardless of which types of campaign they run, D2C brands “are laser-focused on marketing investments that can ultimately prove measurable results,” and tuned-in to CTV’s abilities to enable performance insights,” which in addition to brand awareness include KPIs like site traffic, online purchases, account sign-ups and app downloads.

Survey respondents were drawn from Dynata's 67-million pool of B2C and B2B marketers and surveyed through its online panel. All respondents were sole or shared decision-makers for purchasing digital marketing, advertising and/or market research services. Respondents spanned a wide range of product/service categories.

Industries vary widely in their email practices, adoption of technology and just about everything else, judging by Netcore Cloud’s Email Benchmark Report 2022.  

The differences start with deliverability. 

The retail sector has the highest inboxing rate, at 98.6%, while tech/food delivery is second at 98%. Entertainment/media has the lowest rate, at 77% — probably due to a high frequency of emails and sending regional content. Insurance comes in only slightly higher. 

Among regions, Africa has the highest inbox rate with 98%, with Southeast Asia second at 97%. Europe has the lowest rate at 88.7%, while North America has an average of 91%. 

But the study states, “The presence of corporate mailboxes continues to prevent flawless inboxing, as every mailbox provider has its own set of anti-spam algorithms to navigate.” 

Contrary to popular belief, “Gmail is not the dominant player, other mailbox providers like Apple Mail, Yahoo and Outlook have a major share of email accounts,” the study asserts.

The online dating business has the highest spam complaint rate — 0.03%. But it also has the highest click-to-open ratio: 39%. IT/Services is a distant second at 9.8%. The average click-to-open rate is 5%. 

Media (OTT) has the second-highest spam complaint rate.

As for success metrics, open rate reporting has been distorted by Apple Mail Privacy Protection, which has inflated opens.  

False opens skyrocketed to 60.6% on any single day in January of this year, compared with 21.7% last October. Partial-month data showed 56.8% for February.

The study is based on analysis of over 100 billion emails and across 22 industries, and is limited to Netcore clients.  

On the technology front, 49% have adopted artificial intelligence/machine learning and 51% have not.

Remember AMP (Associated Mobile Pages) for email, the technology that allows consumers to order, answer surveys and perform other tasks within the email without navigating to outside pages? 

The banking and ecommerce fields have the highest level of AMP adoption: 33.3% apiece. They are followed by Media (Publishing), Travel and Gaming, at 11.1% apiece.  

Then there is BIMI (Brand Indicators for message identification) — 5% of companies have adopted it, but that rate should go up, the study predicts.  

The average of DMARC adoption is around 50%. 

The insurance industry has the lowest level, followed by loyalty programs, foodtech and mobile telecommunication industries. 

Other findings include: 

• The optimal subject line length is 36; mobile display cuts it off at the 37th character. Ecommerce brands are most likely to use subject line optimization, followed by Edtech/Educational institutes. Travel has the lowest.  
• The best day to send emails is Friday,  the worst is Sunday, although this varies by industry. Sunday works well for MedTech companies, and Monday is tops for ecommerce because people like to start the week by buying something. 

Nearly six in 10 executives say their organizations are very prepared to meet new consumer privacy laws set to take effect in several states in 2023, yet when asked about particular actions taken, less than half have completed key steps toward compliance.

The study, conducted by Womble Bond Dickinson -- a law firm with more than 1,100 lawyers in the United Kingdom and the United States -- shows that only 49% have completed data mapping, which is a key step in any data privacy initiative. Some 37% say it’s in progress. 

The majority of respondents have undertaken initial actions, with 54% initiating a data mapping and 67% completing a data inventory and mapping of all personal information, data assets and flows.

Less than half of respondents, at 48%, have taken steps such as completing a data mapping and aligning procedures to effectuate individual rights requests and related legal obligations. Only 43% are on track to update an existing data inventory or mapping. 

The delay is one key finding in the 2022 State of US Data Privacy Law Compliance Survey Report, which draws on insights of nearly 200 executives, 62% of whom hold C-suite titles. The report also looks into two forms of consumer data collection--precise geolocation data and biometric information.

The study shows that California, Colorado, Virginia, Utah and Connecticut have passed data privacy laws or amendments that will take effect in 2023, while several other states are contemplating similar comprehensive legislation.

Although 59% of executives say their companies are “very prepared” to meet the guidelines from new privacy legislation, 89% have increased their budgets to do so.

Less than half have completed most key compliance actions. About 49% cited conducting data mapping, 42% cited performing data assessments, and 38% pointed to metrics and deadlines to track compliance.

Some 39% of survey respondents who do not feel their organizations are prepared cite lack of available staff to address compliance, and 60% point to challenges around tracking the status of legislation and differences between state laws.

The survey data also shows how companies assign primary responsibility for privacy compliance.

Less than one-third of those have designated a project manager for data privacy compliance, or are in the process of doing so. Some 18% have assigned the role to a member of the risk or compliance, or 11% to legal departments.

Some 56% of project leads are in technology, and 14% are in information systems.

More than 70% of executives say they are very or moderately concerned about state privacy laws that include specific restrictions on collecting and using precise consumer geolocation data for mobile tracking purposes.

The primary concerns point to securing consent from consumers to gather and apply this data, at 68% -- and on defining the specific business purpose for such data applications, 64%.

Not surprisingly, the retail and tech sectors are more concerned about data privacy compliance. Executives from these industries, who collectively makeup 47% of all respondents, expressed “significantly” more concern than their counterparts about several issues covered in the survey. They fear enforcement actions related to geolocation data, 75% of retail executives say it is due to their industry being a likely target, compared with 57% of respondents overall.

As laws in the United States continue to undergo massive change, one in particular -- the overturning of Roe v. Wade, which transfers the right to abortion from federal to state governments -- may prompt people to move away from Google and Bing as they rethink privacy. Some believe the decision will have a major influence across the advertising industry.

“Everything that happens in this world, especially political, changes the ways marketers bid on keywords and advertising,” says Marty Weintraub, founder of the agency Aimclear. “If there’s wildfires, marketers bid differently on fire suppression. I think there will be medical tourism ads, and health destination ads to the more affluent.”

He said marketers might target these types of ads in wealthy neighborhoods in states that outlaw abortions. For example, in highly affluent neighborhoods in Dallas, consumers may see more destination marketing from places in California, New York or other states where it is legal to have an abortion.

He added that people who support the Right to Life will be more bullish, while those in favor of the Right to Choose will become more cynical. Marketers always factor in optimism and cynicism when making decisions on ad auctions and keyword bidding, he said.

“It’s unknown how this will shake out,” he said. “It will affect pharma brands, healthcare systems, and creatives. Today, you cannot market abortions in Google, but marketers can market to heath or medical tourism.”

Weintraub said the industry can expect “absolute polarization in political advertising” and in many legal channels.

“Scarcity is an important concept in advertising,” he said. “Wherever there’s money, people who have what people look for will find a way around sensitive category restrictions and channels.”

Google says abortion-related ads will not appear on the Google Display Network, even if they are eligible.

The company also does not allow ads related to birth control or fertility products in a wide range of countries.

The data from searches and clicks on ads by people looking online for information also could be used to implicate them in any wrongdoing, similar to the way homicide detectives use search history to connect them to a murder.

Search engines focused on privacy like DuckDuckGo, Startpage, and many others may soon see a boost in use by people reimagining their digital footprint.

Moving searches to engines focused on privacy could have an interesting effect on advertising dollars and the keywords that companies allow marketers to bid on in auctions. It also could influence the way people think about digital privacy.

“In states that not only outlaw but criminalize abortion — a move that Louisiana is considering adopting after a final decision from the Supreme Court — a pregnant woman’s digital search of abortion-inducing medication, online purchase of pregnancy tests, or email request for financial support to a pro-abortion resource group could be deployed against her in criminal proceedings,” Bennett Capers, a visiting criminal law professor at Yale University and full professor at Fordham’s law school, told Time magazine. “Once getting an abortion is illegal, then attempting to get an abortion is also illegal.”

The article published in May 2022 details how almost everything someone searches for on engines like Google and Bing could link them to illegal activities.

On Friday, four Democratic U.S. senators asked the Federal Trade Commission to "investigate Apple and Google for engaging in unfair and deceptive practices by enabling the collection and sale of hundreds of millions of mobile phone users' personal data."

The Supreme Court’s decision to overturn Roe v. Wade cited in the letter says women "seeking abortions and other reproductive healthcare will become particularly vulnerable to privacy harms, including through the collection and sharing of their location data."

“This year, as we struggle — not always successfully — to put the disruptions of the Covid-19 pandemic behind us, we have tightened our focus on what lies ahead,” says the authors of the report.

Although the report cites recent and continuing challenges in public health, supply chain, and geopolitics, it says the changing entertainment/media business is now operating “from new baselines... that is more digital, more mobile, more pitched at media that attracts the young, more evenly distributed around the globe and more dependent on advertising in all its forms.”

Filtering in all of this, it projects modest growth over the next five years -- yielding a 4.6% average compounded growth rate from 2021 through 2026, to reach $2.93 trillion.

Looking at major entertainment categories, video-game revenue will be the star over the next five years, rising at a compounded growth rate of 8.4% through 2026, landing at $321 billion.

The growth path for OTT/streaming revenue will see slightly less, but still strong results -- a 7.6% growth rate through 2026 to $114.1 billion.

Two other categories -- Traditional TV and cinemas -- will see a tougher picture.

Legacy TV will see virtually flat to slightly down revenue due to heavy competition from OTT -- at a 0.8% average decline to $222.1 billion by 2026. Theatrical movie business will continue to struggle, and will not reach 2019’s global box-office mark of $45.2 billion until next year

Global advertising will see a 6.6% average compounded growth rate over the next five years to $1 billion, while internet/digital advertising spend will continue to outperform legacy ad business -- up 9.1% to $723.6 billion by 2026. Non-digital ad spend will reach $290 billion.

Due to this rapid growth, the report says, advertising will become the biggest of three main entertainment/media sectors by 2026 -- with a 35.1% share. Consumer spending will be at 33.5%, and broadband/internet spending, 31.4%.

Data and projections in the PwC/Omdia report are based on consumer and advertising spending in 14 business segments across 52 territories.

I had a great Cannes Lions this week. It was truly special. It was the biggest, best and most productive in-person event that I have been part of in our industry in years.

Tons of meetings (the right ones). Ran into so many people that I wouldn’t have thought to schedule, but was so glad to get to talk to. I got lots done. It was so cathartic to really be back in person after so long in the post-COVID world.

I loved my time there, But it doesn’t take much time there to recognize that the ad industry’s future cannot be defined at places like Cannes. For me, it was the moment I walked by a hipster-looking, Cannes badge-wearer with a T-shirt emblazoned with the slogan “Less plastic more ocean” while drinking from a luxury branded disposable plastic bottle of water.

If we really care about the world’s brands and the people who consume them, we need to get past Cannes.

Toasting glasses of rose on oligarch-sized yachts anchored off the French Riviera while being serenaded by the latest top recording stars makes you (and your business prospects) feel very special, so special. But that is not the part of the world that needs our help, and our advertising.

The Cannes world is far away from the life of the consumers around whom brands and their advertising should center: the folks who buy those cars, potato chips, mobile phones and dog food, but who today are truly terrified about how they can pay for the next tank of gas to get to work and not be late on the monthly mortgage payment or the co-pay on their kids’ orthodontist bill. No trip to the beach this year?

Being present at a place like Cannes makes you feel good about yourself and your importance in the world. To be clear, I am not against that kind of celebration. But, after a point it defines you -- you don’t define it.

Thus, it’s not surprising that many folks today see the ad and media industry (and much of big tech, as advertising become its key revenue and profit driver) as hypocritical global elites living privileged lives in bubbles. I get it. We’re fair game on that front.

Ad events like Cannes, CES, celebrity red carpets, and hobnobbing in D.C. shouldn’t go away, but we need to find a way past them.

Today, we have the worst inflation in more than 40 years, a war in Europe, gasoline prices through the roof and a climate crisis that presents real and significant existential issues for all of us.

We need a grounded ad industry. Advertising means too much to the world. It can be a truly noble industry. But we will have a hard time finding and truly living that nobility if we can’t find ourselves past Cannes.

Most companies are prepared for the welter of state privacy laws, But almost all would rather see a federal law that preempts individual state regulations, according to the State of US Data Privacy Law Compliance Survey Report, from Womble Bond Dickinson. 

Of the businesses surveyed, 59% say they are very prepared to meet the guidelines contained in state data privacy legislation in California, Colorado, Virginia and Utah. Another 31% are moderately prepared. 

Moreover, 89% have increased their budgets to comply with the varying state laws. But they face challenges:

• Tracking the status of legislation and the differences between state laws — 60%
• Increasing budget to take on the necessary actions — 47%
• Lack of available staff to address data privacy compliance — 39%
• Lack of an appointed leader to manage compliance within our organization — 25%
• Have not prioritized the changes to date — 15%

 These issues may explain why 88% would like to see a federal law, 53% strongly so. Companies claim they have completed these tasks:

• Designate an internal project manage or owner — 60%
• Conduct data mapping and understand data practices across the organization — 49%
• Develop platforms and systems to process and respond to data privacy rights requests — 46%
• Engage outside legal counsel to advise on legislative challenges and compliance — 43%
• Plan and conduct data assessments — 43%
• Update privacy policies — 41%
• Set metrics and specific goals/deadlines to track progress — 38%
• Draft or update agreements with third parties — 37%
• Conduct comparison of state privacy laws and frameworks — 34%

Most of the remaining firms have made varying degrees of progress. 

In addition to state laws, firms are also affected to varying degrees by technology company policies. On a scale of one to 10, the average influence of state laws is 7.2.  

But some are also swayed by tech company policies, especially tech executives — their rating is 6.9, while retail execs came in at 5.6.  

Why are they so concerned about tech company policies? A COO of a California-based retailer said: “We are at their mercy due to search and advertising.” 

One of the next threats may come in the area of geolocation data.

Laws in California and Virginia restrict use of precise consumer geolocation data for mobile tracking): Most companies — 86% — are concerned, with 42% saying they are very concerned and 29% who are moderately concerned. 

Securing consent from consumers to gather and apply the data — 68%

Defining the specific business purpose for data application — 64%

Losing the insights that geolocation data has provided — 38%

Pacing enforcement actions if found not to be in compliance — 32%

Losing the revenue that geolocation data has provided — 24%

Then there is biometric data — 78% of firms are either using it or planning to start. And 60% have assessed the risks, developed compliance plans and conducted internal training.  

That is not the only potential issue. 

Moving forward, there are two classes of data that companies will need to protect — personally identifiable information and sensitive data (e.g., racial or ethnic, origin, religious or philosophical beliefs, or union membership; email content; biometric information; genetic data; and precise geolocation data),” the study notes. 

Womble Bond Dickinson, a law firm that offers privacy and security assistance, surveyed 200 executives, 62% of whom hold C-suite titles.