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The Article 17 Series Part 2: Privacy in 2020 – and beyond

Posted May 26, 2020

In the first of our series on privacy with tech company privacy attorney and expert Alan Chapell, we took a look back at the history of privacy issues and the legislation impacting our daily lives and our industry. This week, we look at the present and future of privacy.

Digital privacy is the #1 most important issue in the mobile advertising industry today, and it will be over the next five years. Yet it’s the topic that most of us know the least about. The Article 17 series takes a look at privacy considerations for mobile publishers and advertisers together with Alan Chapell, founding partner of a law firm focusing on privacy for tech companies, providing his fact-based POV on the current state of privacy regulations.

Need to catch up? Read part 1 first!

Where is this going?

What changes will we see in the near future as a result of recent changes? How is Coronavirus changing our view of privacy? What is the long-term projection?

AdColony: GDPR mostly impacts the European Union, and CCPA obviously covers California – yet these “local” laws have had a global effect. What is the impact of CCPA and GDPR? Do you think we’re going to see more privacy laws in 2020? 

Alan Chapell: The GDPR has had a significant impact on privacy laws across the globe. Take a look at just about any privacy law under discussion over the past two years and you’ll notice that almost all of them borrowed at least one privacy concept from the GDPR. And although CCPA is scoped to regulate the personal information of California data subjects, I think you’ll see many companies effectively treat CCPA as a national law for the U.S. 

Some of us would prefer a national set of privacy standards in the United States. But until there’s a federal omnibus privacy law, there’s always going to be some concern about U.S. state laws. State laws bring the possibility of navigating different and potentially conflicting standards. And in California, there’s already another ballot initiative called the California Privacy Rights Act (CPRA). The CPRA also borrows pretty heavily from data protection standards found in the GDPR, by the way.

Regardless of which states pursue privacy laws, I have a feeling that whenever we recover from this recession we’re likely to have a Federal government that is much more open to codifying privacy rules into a national law. And I think that there might be more inertia to really go after tech companies on privacy issue; the appetite for that is likely to increase. Now it’s hard to predict, 12 to 18 months from now, given the chaos in the world. But I think there’s a pretty good chance.

AdColony: One of the things that’s coming to light with respect to the pandemic is the use of precise location data. How do you think COVID-19 is changing consumers’ understanding of that collection?

Alan Chapell: Well, when X-Mode tracked the spread of coronavirus based off of the cell phone data of spring breakers in Florida, the number one type of comment that I saw online was “I had no idea my phone was being tracked at this granular level.” And now the government is interested – very interested – in getting their hands on that data. This brings up the argument about “public good,” that is, is it okay to gather data if it’s only being used to help people. 

And that’s a difficult argument. My understanding is that the government is requesting a lot of this information for the pandemic, but it unclear that Government is interested in making assurances that they won’t use it for something else down the line. Assuming that’s the case, it would really place tech companies in a difficult position. They want to help with the pandemic – but they also want to respect privacy interests.

AdColony: Another near-term issue is Apple and Google getting rid of mobile ad IDs. What do you think will happen then? 

Alan Chapell: Well, as you know, Chrome recently made an analogous announcement in the browser and cookie world. Regarding mobile ad IDs, I don’t have any insight into what those companies are doing, but I will say that those same companies also own the browsers. But at least in the case of Apple, I don’t think they profit off of the cookie in the same way that they make money off of the IDFA.

AdColony: In the meantime, China continues to grow its app economy at a remarkable rate. Do you foresee any impact from that? 

Alan Chapell: First, in terms of privacy, just as GDPR was European, but anyone doing business in Europe had to comply, we are living in a time where state-based legislation decisions really impact everyone. China does have an entirely different privacy regime than the rest of the world, but as of now it seems to only be impacting them. That could easily change, though. 

What we’re definitely seeing now is Chinese investment in the mobile app space. It’s a large and fast-growing economy, and I think they’re just extending their influence into the rest of the world.

AdColony: Beyond the next year, which privacy trends do you see continuing, or emerging, in the next five to ten years? 

Alan Chapell: I think we’re going to continue to see a further restriction of data use for one thing. This will be true even if our domestic politics doesn’t shift to the left, as I noted. 

Another trend I think we’re going to see is ad tech companies starting to look much closer to marketing technology companies where the added value lies in their ability to identify efficiencies with precision. For instance, you know that in this slot at 2:59pm on a Tuesday, blue banners render better than red ones. And for them to be able to know that without encroaching on someone’s intellectual property or from creating profiles of content consumption. 

If you can make advances in technology and targeting that are valuable without stepping on privacy or IP rights, that’s what’s going to make you valuable in the long term. I think being able to be “smart” while still staying within the confines of privacy and IP rights is what will separate the successful companies from those that become obsolete. 

Next Time on the Article 17 Series
Alan shares advice and considerations for app publishers. The anticipation of these changes is necessary to get ahead of future digital privacy laws as developers make improvements and grow portfolios with new titles.

About Chapell & Associates
Alan Chapell serves as outside counsel and chief privacy officer to digital media companies. Since 2003, Chapell has advised well over two hundred different companies, from venture-backed startups to some of the largest media, technology, and telecommunications companies in the world. Chapell’s mission is to help clients navigate regulatory, public policy and other marketplace challenges to maximize the value of their products and services.

For more information, please reach out to achapell@chapellassociates.com or visit Alan’s LinkedIn profile here. Chapell is often asked to write for industry trades, and some of his writing may be found here.

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Jonathan

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