Ken Dreifach, an attorney specializing in marketing, privacy and ‘Big Data’ law, shares his insights on the importance of self-regulation, and on how data governance ‘Best Practices’ can provide vendors, platforms and service providers with real competitive advantages. 

We’ve heard a lot lately about self-regulatory efforts in the data and ad tech industry:  DAA, DMA, NAI, IAB, MMA, OBA . . . acronyms abound.  But why do we need “self-regulation”?   Are industry seals, codes, guidelines and memberships all just window-dressing?   And what can self-regulation do for your company?  

 More than ever before, platforms, service providers and others in the ad tech community are finding that membership in traditional and emerging self-regulatory groups, along with adherence to “best practice” guidelines, can make the difference between closing deals with big brands or coming up short. 

 Why is this happening?  It’s because we’re in a time of remarkable expansion in the ways that marketing data of many varieties is used, shared and moved across platforms and channels — often in real-time.  And this naturally leads conscientious companies to ask questions about consumer privacy before they jump on board new data methodologies – kicking the tires of new ad-serving, data-tracking, or consumer insight channels and asking (to paraphrase Eric Schmidt’s famous comment) whether they are getting too close to the “creepy line.”   

 These questions, traditionally posed by lawyers, are increasingly coming from other directions too – whether marketing, compliance, media directors or data strategists.  That’s because the laser-beam focus on consumer privacy by media and policymakers these past couple of years has touched so many brands that it has made consumer privacy as much a branding issue as a “legal” or “compliance” issue.  The DMA has even begun offering a “Data Governance” Certification program – directed not to legal and compliance teams, but to CMOs and marketing teams, and touching not only on privacy but all aspects of how data is, should be and can be used in marketing.

 Self-regulatory groups thus have become a bridge between platforms and providers, and the brands that want assurance that they’re on the right side of the creepy line when it comes to using data in a transparent, ethical and responsible way.   The DMA’s “Guidelines for Ethical Business Practices” provide a template for companies to audit or self-audit their data practices, while the IAB’s Standard Terms and Conditions are so ubiquitous as to be referenced in many, if not most, online ad insertion orders.    Online ad deals increasingly get nixed where an ad platform or exchange is not a member of the NAI; and at the same time third parties like TRUSTe, Evidon and the Better Business Bureau help companies abide by DAA’s “OBA Principles” and increase consumer transparency.  

 From a policy perspective, these self-regulatory schemes have huge practical benefits over legislated solutions:  drafted by industry experts, they can expand and adapt as models emerge and fade – something that legislated solutions cannot do nearly as easily.  Industry-generated rules also benefit from wide-scale collective action and agreement – unlike legislative solutions that can be susceptible to narrower or parochial lobbying efforts and interests.   

 So what can self-regulation do for your company?  Joining industry organizations, be it DAA, DMA, NAI, IAB or others — and adhering to their best practices — doesn’t only look good as a logo on your website.  It offers your company’s strategy and design teams insight into what product features will pass muster,  while demonstrating a commitment to best practices that many of the biggest brands are demanding.   

 Currently practicing in New York with the ZwillGen, PLLC law firm, Ken has divided his career between the regulatory world (as long-time Chief of the New York Attorney General’s Internet Bureau), high profile in-house roles (including General Counsel of LiveRamp, Inc., a Bay Area data technology hub), and private practice.  He has served in advisory and committee roles with the DMA, as well.

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