The compliance warning explains that native, interest-based advertisers should provide consumers with transparency through “enhanced notice” in or around the native ad that, like the AdChoices Icon, alerts consumers that they are viewing an ad and links to more information about interest-based advertising and consumers' ability to exercise choice by opting out. While the BBB appears to favor the AdChoices Icon, the warning notes that a clear phrase alerting consumers that they are viewing an ad may be used instead. Additionally, the warning reminds advertisers that they must give consumers control over the collection and use of their data and must honor the choices made.

Developed in 2009 by leading industry associations, the seven OBA Principles are intended to make online behavioral advertising more consumer-friendly, giving consumers knowledge of and control over the information collected about them. The Principles are (1) education, (2) transparency, (3) consumer control, (4) data security, (5) material changes, (6) sensitive data, and (7) accountability. It is important for advertisers engaged in online behavioral advertising to ensure compliance with these Principles, regardless of the technology and platform or device used.

The 2013 NAI Code reinforces the requirements for participants to provide education, notice, and choice regarding OBA, stating that industry’s approach must not remain stagnant, but rather adapt to ensure that the self-regulatory framework remains relevant and effective. It was also updated to reflect regulatory guidance including the FTC Final Privacy Report and White House Privacy Report. Additionally, the 2013 NAI Code harmonizes requirements with the Digital Advertising Alliance (“DAA”) Self-Regulatory Principles for Online Behavioral Advertising. [The NAI is one of the members of the DAA.]

The 2013 NAI Code introduces a new framework of data “identifiability” that splits the difference between the FTC and industry’s definitions of what is PII:

• PII = Used or intended to be used to identify an individual
• Non-PII = Linked or reasonably linkable to a specific computer or device
• De-Identified Data = Not linked or reasonably linkable to either an individual or a specific computer or device

The online advertising industry continues to face scrutiny from regulators and Congress regarding its approach to OBA, with a specific focus on a Do Not Track standard. Companies engaged in any OBA, interest-based advertising, or online remarketing / retargeting activities should stay tuned as the self-regulatory and regulatory framework continues to evolve.