When browsing the internet, consumers are accustomed to being presented with advertisements for products for which they previously had searched. Through use of third-party tracking tools, companies are able to monitor visitor activity on their websites to, among other things, provide targeted advertising. Although consumers rarely read them, companies often disclose the use of these tracking tools in their privacy policies. If your company uses third-party tracking tools to collect consumer data, then it is imperative that you read this blog post.
Obtain Consent Prior to Using Tracking Tools
Meta's Facebook Pixel and Google Analytics, among others, are third-party tracking tools that companies utilize to track consumer interactions on their websites. Use of these tracking tools should be disclosed in company privacy policies, and detail: (1) the types of consumer data collected; (2) the tracking tools used to collect that data; (3) how said data is used; and (4) with whom the data is shared. However, even if a given company discloses that it employs third-party tracking tools in its privacy policy, the subject tracking tool may trigger the moment consumers visit the company's website, making it nearly impossible to obtain consent before the tracking tool begins consumer data collection. Warning: you should do more!
Global privacy laws, such as the European Union's General Data Protection Regulation ("GDPR"), already require consent prior to collecting data when a consumer visits a website. To align with these global privacy laws, Microsoft recently announced that websites using its tracking tools are required to provide Microsoft with user "consent signals" beginning on May 5, 2025. By using a Microsoft tracking tool feature called "Consent Mode," Microsoft's access to consumer data automatically adjusts depending on whether or not a consumer consents to data collection.
If Your Company Uses Tracking Tools, Review Your Privacy Policies!
Although Microsoft's Consent Mode feature is only required in the European Union, United Kingdom, and Switzerland, online businesses in the United States are wise to follow suit. As our readers are aware, consumer data collection through the use of third-party tracking tools has led to an onslaught of lawsuits alleging that such use, without consumer consent, violates federal and state wiretapping and privacy laws. Some courts have demonstrated a willingness to entertain these claims; as such, companies should, among other measures, display a cookie banner on their website landing pages: (1) informing visitors that their websites use tracking tools; and (2) requiring consumers to affirmatively consent to the use of tracking tools before any tracking begins.
The federal and state consumer privacy landscape is shifting every day. The measures discussed above are not an exhaustive checklist, and online businesses should regularly review and update their privacy policies to reflect changes to their data collection, use and sharing practices, as well as to comply with evolving privacy laws. Businesses must consult with experienced counsel to ensure that they comply with applicable consumer privacy regulations, because failing to do so could result in significant liability. The attorneys at Klein Moynihan Turco ("KMT") have years of experience assisting companies with federal and state marketing and consumer privacy law compliance. Importantly, the KMT litigation team has successfully defended numerous businesses against federal and state privacy law claims.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
