The National Advertising Initiative: Conclusion

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The NAI has failed. The agreement is foundationally flawed in its approach to what online means and in its choice of the opt-out cookie as a core feature. The NAI opt-out does not work consistently and fails to work at all far too often. Further, the opt-out is counter-intuitive, difficult to accomplish, easily deleted by consumers, and easily circumvented. The NAI opt-out was never a great idea, and time has shown both that consumers have not embraced it and that companies can easily evade its purpose.

The original NAI agreement has increasingly limited applicability to today’s tracking and identification techniques. Secret cache cookies, Flash cookies, cookie re-setting techniques, hidden UserData files, Silverlight cookies and other technologies and techniques can be used to circumvent the narrow confines of the NAI agreement. Some of these techniques, Flash cookies in particular, are in widespread use already. These persistent identifiers are not transparent to consumers. The very point of the NAI self- regulation was to make the invisible visible to consumers so there would be a fair balance between consumer interests and industry interests. NAI has not maintained transparency as promised.

The behavioral targeting industry did not embrace its own self-regulation. At no time does it appear that a majority of behavioral targeters belong to NAI. For two years, the NAI had only two members. In 2007 with the scheduling of the FTC’s new Town Hall meeting on the subject, several companies joined NAI or announced an intention to join. Basically, the industry appears interested in supporting or giving the appearance of supporting self-regulation only when alternatives are under consideration.

Enforcement of the NAI has been similarly troubled. The organization tasked with enforcing the NAI was allowed to become a member of the NAI for one year. This decision reveals poor judgment on the part of the NAI and on the part of TRUSTe, the NAI enforcement organization. Further, the reporting of enforcement has been increasingly opaque as TRUSTe takes systematic steps away from transparent reporting on the NAI. If the enforcement of the NAI is neither independent nor transparent, then how can anyone determine if the NAI is an effective self-regulatory scheme?

The result of all of these and other deficiencies is that the protections promised to consumers have not been realized. The NAI self-regulatory agreement has failed to meet the goals it has stated, and it has failed to meet the expectations and goals the FTC laid out for it. The NAI has failed to deliver on its promises to consumers.



Author: Pam Dixon, executive director, World Privacy Forum Editor: Robert Gellman

Graphics: John Boak

Technical review: The World Privacy Forum thanks the individuals who contributed to the technical review of this report.

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Roadmap: The National Advertising Initiative – Failing at Consumer Protection and at Self-Regulation: Conclusion


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