The US Regulatory Landscape: A Patchwork of Concerns

Every click, tap and keystroke we make leaves a digital trail of some sort. While consumer awareness of how companies use data for purposes such as advertising is on the rise, Americans are uneasy and uncertain about privacy practices.  

Three years after Apple’s introduction of its App Transparency Tracking (ATT) framework, AppsFlyer data shows roughly half of iOS users are opting out of tracking. Meanwhile, two-thirds of Americans are using a VPN at home to protect their personal data, according to figures from Forbes Advisor.  

If the complexities of data privacy in the US are confusing for consumers, marketers and in-house legal and privacy teams are likely even more frustrated.  The European Union's General Data Protection Regulation (GDPR) has gone a long way to revolutionizing data privacy in the EU, but the US remains in a state of flux, lacking a comprehensive federal privacy law. Instead, the patchwork of state-level regulations and industry-led privacy policies have created uncertainty and concern for marketers. 

Positive Signs on the Horizon? 

The announcement in early April of a draft bipartisan US federal privacy bill will have come as welcome news for American businesses and consumers. The bill promises provisions to prevent companies from using personal information to discriminate against individuals, while also including requirements on data minimization, opt-out rights for consumers, and the establishment of a national data broker registry.  

Related:Data Privacy in the Age of AI Means Moving Beyond Buzzwords

However, while marketers should be getting firmly behind this bill, they should do so with a note of caution. There is likely to be a long path ahead for this bill, with many stakeholders needing to make their voices heard. Attempts to create federal-level legislation on privacy have stalled before, including the American Data Privacy and Protection Act that did not make its way to President Biden’s desk. Brands and publishers can't simply wait for the bill to be enacted to take action on consumer privacy.   

Unwrapping Layers of Complexity 

Right now, US marketers must navigate a maze of state-specific rules. From California’s CCPA to Virginia’s CDPA, many states impose distinct requirements. The upshot of this is that brands that once focused on global reach now find themselves grappling with localized nuances. The shift from international privacy considerations to domestic state-by-state compliance adds layers of complexity. Learning how to address each state's regulation is resource-intensive and makes it much more difficult for marketers to execute effective nationwide campaigns.  

Related:How to Innovate in a Privacy-Protective Way

With signal loss already affecting third-party data, brands have been working toward first-party data as their savior. But the nuances of gaining user consent and knowing the requirements based on every region makes this more and more difficult to accomplish. When it comes to areas such as consent for data collection, for example, the current absence of a federal standard means brands struggle to strike a balance between transparency and usability. The issues of how consent can be requested, how data can be stored, what data can be stored, how long it can be stored, and requirements around removal requests all need to be considered. And the answers to these questions differ state-to-state.  

Learning from GDPR 

Comparing the current situation in the US with what's happening in the EU underlines the stark contrast between the regions. After GDPR was introduced, more than five years ago, consumers in Europe have been greatly empowered by the level of control they have over their data. Brands must respect individual rights, including access, rectification, and erasure. In contrast, US marketers operate in a gray area. The absence of federal guidelines leaves consumers vulnerable. 

Related:Keys to Maximizing Data Value

GDPR also acted as a catalyst for EU companies to invest heavily in compliance, and many of them have thrived by prioritizing privacy. But with regulations popping up on a piecemeal basis in the US, there has been no similar momentum. US brands have been faced with uncertainty about if and when to invest in compliance and adapt their marketing processes. So, while GDPR effectively leveled the playing field in Europe, with compliance becoming a competitive advantage, the absence of uniformity in the US has tilted the scales. Large corporations adapt better, while smaller players lag. 

Advocacy, Collaboration, and Best Practices 

Marketers must advocate for federal privacy legislation. It's essential that we do our bit to educate stakeholders about the urgency of creating a harmonized framework that provides protection for consumers and certainty for marketers. As well as supporting advocacy, industry collaboration fosters knowledge sharing. US marketers must learn from EU experiences, while implementing best practice processes around transparent consent mechanisms, robust data governance, and user-centric approaches to help bridge the gap that lies ahead of federal-level legislation. 

As the US grapples with data privacy, marketers stand at a crossroads. The path forward lies in clarity, collaboration, and commitment. Just as GDPR transformed the EU, a federal privacy law can empower US marketers and protect consumers. We must navigate this maze together, ensuring data-driven innovation while respecting individual rights. 

By addressing these challenges head-on, marketers can build stronger relationships with their audiences. In this ever-changing landscape, staying informed and agile is the marketer’s best defense against the data privacy maze.