ADVERTISING AND PROMOTIONS (AD-TECH)

Advertising and Promotions (Ad-Tech)

Ad-Tech (also known as "ad tech", "adtech" or "advertising technology") is an area of marketing which utilizes a combination of numerous hardware and software marketing technologies, whether concurrently or consecutively, to improve the ability of entities who advocate to consumers on behalf of various beliefs, companies, causes or products to reach the specific consumer subgroups which may be interested in the specific beliefs, companies, causes or products for which such entities are advocating.

The difference between advertising and marketing is that advertising merely broadcasts general messages about the beliefs, companies, causes or products for which any advertising entity may be advocating to the entire public in general, with very little consideration for targeting the specific consumer subgroups which may be interested in the specific beliefs, companies, causes or products, or by choice of advertising media being utilized or by the general message being pushed through the advertising, whereas marketing (and in particular ad-tech-enabled marketing campaigns), leverages all available data about specific consumer subgroups and available methods of message delivery, to provide as much on-point information to such specific consumer subgroups, to match a particular message regarding the specific beliefs, companies, causes or products in which such particular consumer subgroups may be interested to the specific consumers in such specific subgroups, thus increasing the likelihood that such particular consumers in such particular subgroups will spend their money on the particular belief, company, cause or product that is being pushed to such consumers in the ad-tech campaign.

Ad-tech allows the targeting of potential clients in a customized and precise manner, through the use of particular media (such as YouTube – for those who prefer video messages, or podcasts – for those who may prefer to listen only), or particular software components (such as cookies, online tracking tools, web bugs or the like).

Ad-tech technologies rely on the concept of online stealth profiling of consumers (meaning the attempts to glean as much spontaneous personal and private information about such consumer, without the consumer's knowledge of any such attempts, which might then result in the consumer acting in any consciously-modified manner, which might be the case if the consumer knew that such consumer's online behavior was being tracked and logged), and thus ad-tech technologies are in continual conflict with the numerous privacy regulations promulgated by various global governments and jurisdictions. – basically it is a continuous battle between actual privacy settings (if any, that may or may not be integrated by developers and manufacturers into the various hardware and software technologies used by consumers on a daily basis) and the theoretical mandates of privacy laws.

Unfortunately, developers and manufacturers may have very little interest in making privacy controls and settings readily-available – whether by actual switches or push-buttons on physical devices, or through the graphic user interface (GUI) of virtual software applications – to the consumers who may actually use such devices or applications, since the information harvested by such developers and manufacturers about how such consumers spontaneously use such devices or applications is not only valuable to such developers and manufacturers as a trove of information regarding how such developers and manufacturers may improve such devices and applications, but such information may also be a source of revenue to such developers and manufacturers through the sale of such information to third-parties interested in targeting ad-tech-enabled marketing campaigns to such consumers.

Thus, assuming that a developer of an application or a manufacturer of a device wishes to protect a consumer and potential purchaser from any violation of such consumer's personal privacy, a large part of legal work related to ad-tech must not only just on verifying what available privacy controls and settings (if any) are superficially-accessible and readily-visible on the GUI of the application or the exterior of the device, but must also focus on verifying the compliance of all the available privacy controls and settings (if any) that may be integrated into such application or device with all the applicable court decisions, directives, rules, regulations, statutes and treaties, not only in the particular jurisdiction in which such application or device is developed or manufactured, but also in any jurisdiction in which such device or application may be used by any consumer.

One method to determine the vulnerability of a developer or manufacturer in an ad-tech situation to possible violations of a consumer's personal privacy is to check the source of the data upon which all the technologies utilized in the particular ad-tech "stack" (meaning the collection of various hardware and software solutions that may be chained together into some particular consecutive or concurrent configuration for the purpose of pushing the particular targeted ad-tech message to the particular targeted consumer) may rely.

Data providers currently may use two different configurations for data collection: data lakes (formerly referred to as "data pools" before the advent of artificial intelligence – AI – which is currently an important technology relied upon by data providers to identify sources of possible data relevant to the particular data provider's areas of interest, which are basically comprised of millions of individual random files containing raw data, collected from any source to which the data provider may subscribe, residing in server farms – collections of servers located in either a central location or perhaps at many locations throughout the globe internationally – in which each such individual random file may or may not have some metadata inserted by the original provider of such individual random file, so that each such random file is an individual file, completely independent of all the others, and may only be discovered if a subscriber to the data provider's service enters Boolean search terms, keywords and queries intended to detect files containing some of the information desired by such subscriber to the data provider's service); and, data warehouses (collections of files in server farms curated by the data provider – meaning that upon the receipt of each file, the data provider examines it and adds relevant metadata to such file to make it more-easily accessible and identifiable, and then places such file in a folder of similar files, and then perhaps in a collection of relevant folders, so that it is much easier for a subscriber to such data provider's service to find information resulting from Boolean search terms, keywords and queries entered by such subscriber, intended to detect files containing accurate and relevant information).

Although the services of data providers utilizing data lakes may be less expensive than those of data providers utilizing data warehouses (since such data providers spend time to curate each file it may receive), the data gleaned from a data warehouse may be much more accurate and relevant than similar data gleaned from a data provider utilizing a data lake (since such data provider may spend little or no time verifying the accuracy or relevance of any file it receives).

Thus, for example, if an ad-tech campaign would be targeted to medical professionals, and thus may be expected to require a high degree of accuracy and relevance, it would be prudent for a legal professional within the ad-tech chain to source for a data provider which utilizes a data warehouse rather than a data lake, whereas for general ad-tech campaigns regarding non-specialized information, data gleaned from a data provider utilizing a data lake may be acceptable.

In general, some of the major legal considerations in any ad-tech-related activity may be: antitrust (such as a data provider or social media company controlling access to consumers' data in a proprietary manner that may be advantageous to the clients of the data provider or social media company, or attempting to steer consumers to make choices based upon the selective dissemination or the conscious misuse of any data, or collaboration between data providers or social media companies to predetermine what data may be accessible to consumers, and the like); artificial intelligence (a group of algorithms – sets of rules embodied as computer programming code– which are programmed by humans to effectuate decisions based upon such sets of rules, which are not necessarily constrained by any ethical or moral rules that may influence the programmers of such algorithms, unless such programmers make a conscious attempt to do incorporate their ethical and moral values into such algorithms – although it can be argued that if such ethical and moral values, whether judged "bad" or "good" by some majority of people in some particular location were indeed incorporated into such algorithmic programming by the programmers, such ethical and moral values might skew the results returned by such algorithms as to render such algorithms worthless for the purposes for which they were intended); data privacy (meaning the entire body of court decisions, directives, rules, regulations, statutes and treaties, that may ever govern any part of an ad-tech campaign, including but not limited to any third-party content management platforms – CMPs – utilized for providing any data to such ad-tech-related campaign); data security (since data is currently a valuable commodity to be monetized, cybercriminals are intent upon the hijacking of any such data, thus imposing upon all actors in any ad-tech enterprise the responsibility to employ as many hardware and software solutions required to render any such data as crack-proof as possible); transactions (the legal professional involved in any aspect of an ad-tech enterprise must make all reasonable attempts to incorporate strong contractual protections for the client, to deter known and possibly-anticipated situations in which the data utilized by the client for the ad-tech enterprise may be misused by the other contracting party or by some third-party known to or reasonably-anticipated by such other contracting party to be a potential abuser or misuser of any such data provided by the client to the other contracting party); and, intellectual property (IP) (issues involving copyrights, patents, trade secrets, trademarks, such as: applicable law governing the contract; audit rights to ensure compliance with contractual responsibilities and applicable laws; insurance types and limits to address "catastrophic failures" in the enterprise and data misuse; licensing for the entire ad-tech stack or parts thereof; outsourcing issues caused by custom and use in foreign countries; ownership of each particular hardware or software technology that may be a component in a particular ad-tech stack, and ultimately, who may own the data resulting from such stack).

Due to the prevalence of sophisticated stealth ad-tech technologies used on the internet, such as attribution conversion – how to attribute credit to various advertisements on various previous websites visited by the consumer for such consumer's purchase of an item on the final website where the consumer ultimately purchased the item – beacon Bluetooth broadcasting devices, behaviorally-targeted advertisements, browser hijackers, cookies, device fingerprinting, device identifiers, keystroke loggers, frequency capping – a term in advertising meaning restricting (capping) the number of times (frequency) a specific visitor to a specific website is shown a particular advertisement – and profiling – defined in the GDPR Article 4(4) as "any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyze or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behavior, location or movements” – and the like, browser developers such as Apple, Firefox and Google – which is arguably the largest ad-tech company on the face of the Earth – are attempting to assure users that their browsers offer some measure of protection from tracking by any site visited by such users, with innovations such as Apple Safari's intelligent tracking prevention (ITP), Firefox's frequently-updated (and easily-understood) Enhanced Tracking Protection (ETP) privacy settings, and Google's extensive Privacy Panel (with the Google proprietary and supposedly privacy-friendly Privacy Sandbox, which unfortunately may contain many tracking technologies).

However, such technologies may not deliver all the privacy they imply (for instance, to get the alleged benefit of the full spectrum of the Google privacy settings, one must first sign up for a Google account, and even then, one must first sign into such Google account before such settings become available – but since the user is already signed into their Google account through the main Google site, all of such user's activity may already be tracked through the Google internal server logs, so that any belief of anonymity by the user may be illusory, except perhaps for some websites other than for Google's own website site).

Compliance with domestic and international guidelines and regulations from administrative agencies, governments and trade associations – such as the Brazil Lei Geral de Protecao de Dados (LGPD), the California Confidentiality of Medical Information Act (CMIA), the California Consumer Privacy Act (CCPA), California Privacy Rights Act (CPRA), the California Department of Public Health, the California Office of Attorney General, the Canadian Anti-Spam Act (CAN-SPAM), the Digital Advertising Alliance (DAA), the European Union (EU) Charter of Fundamental Rights, the EU General Data Protection Regulation (GDPR), the EU Network Information Security (NIS) Directive, the Federal Trade Commission (FTC), the Health Insurance Portability and Accountability Act (HIPAA), the Interactive Advertising Bureau (IAB), the National Institute of Standards and Technology (NIST) Cybersecurity Framework NISTIR 8323, the Network Advertising Initiative (NAI), the New York State SHIELD Act, the Telephone Consumer Protection Act (TCPA) – which is now applied to text messaging, the United Kingdom (UK) Information Commissioner’s Office (ICO) and the Video Privacy Protection Act (VPPA) – which among other privacy-protecting mandates require website owners to inform users of the website's cookie policy (including any other tracking methods that may be used by that website) and then to obtain such consumer's consent to such tracking methods through some affirmative consenting action by such consumer (such as by clicking a virtual button on the main page of the website).

If such consumer does click such virtual button, the consumer in effect gives up any right to privacy, but any ad-tech tracking technologies utilized by such website will glean valuable data from such consumer's behavior at such website, but conversely, if such consumer refuses to click such virtual button, it is often unclear as to how much of such website would continue to function properly (thus depriving the consumer of the experience promised by such website) or worse yet, whether all the ad-tech tracking technologies utilized by such website would continue to function (despite the consumer's mistaken belief that by refusing to click such virtual button, such ad-tech tracking technologies would be automatically disabled by such website).

According to the best practices guidelines outlined in current domestic and international regulations applicable to ad-tech, in order for potential advertisers to make a good-faith reasonable determination about how to responsibly use data contained on any data management platform (DMP) – an AI-enabled technology that analyzes, categorizes and collates data, thus enabling targeted advertising and allowing potential advertisers to create clusters of potential consumers to target, based on the information already-gleaned from such potentil consumers due to their past visits to certain websites, and then to create marketing campaigns targeted to such clusters of potential consumers where such targeted marketing campaigns will be most effective; the information involved may include data points such as browsing behavior, location data, purchasing history, or other relevant data – to be utilized by the potential advertiser for a particular ad-tech campaign, such potential advertiser should first undertake the extraordinarily-expensive, labor-intensive and time-consuming task of identifying all personally-identifiable information (PII) that may be facially (in terms of the plain text visible to the naked eye) or subliminally (in the metadata) embedded in each file obtained by such potential advertiser from such DMP, regarding any existing client or potential consumer trageted for the ad-tech campaign, and then completely redact any such data before incorporating the file that once-contained such PII into the ad-tech campaign.

However, potential advertisers also use other technologies in their stacks besides DMPs, such as: demand-side platforms (DSPs) – which establish their criteria for the advertising space they want to purchase and the price they are willing to offer for such space– and supply-side platforms (SSPs) – used by the actual publishers of advertisements to list the availability of advertising space on particular websites and the various prices therefore – (which may both be analogous to stock exchanges) thus making the possibility of the potential advertiser sifting through all such data before commencing an ad-tech campaign virtually impossible (since all the data on all such platforms to be utilized by the potential advertiser changes from moment to moment).

Thus, the potential advertiser must use real time bidding (RTB) technologies – a form of programmatic advertising, which is a type of machine-based auction for the purchasing and selling of digital media and the automation of direct sales – to complete transactions in the fastest manner possible, without having any opportunity to examine every individual file to be utilized in the potential ad-tech campaign.

Even though ad-tech firms might try to purchase only data that has allegedly been previously "anonymized" (meaning that all PII has supposedly been scrubbed from such data), that would still not relieve any such ad-tech firm from liability as a transmitter if any such data was found to still have PII.

Negotiation and drafting of contracts for providers and services in the entire spectrum of the ad-tech ecosystem, such as for ad content providers, ad development, ad servers, ad publishers, data analytics providers, data licensing, data optimization, dataset management, master agreements (MAs), master services agreements (MSAs), DMP, DSP and SSP services, search engine optimization (SEO), targeting, and for other issues in the ad-tech ecosystem.

Negotiation and drafting of data exchange agreements (such as with ad exchanges, DMPs, DSPs, SSPs and networks), data management agreements, digital advertising agreements, insertion orders (IOs), media buying agreements, modifications of IAB terms and conditions.

Negotiation and drafting of data processing agreements, data privacy and data security terms for contracts with third party vendors.

Authored standard form contract templates for typical transactions, and ad-tech-related corporate policies.

Authored an ad-tech negotiation playbook with strategies keyed to every clause, for use by the marketing and sales teams.

Performed typical ad-tech-related legal tasks may include consultation on issues such as creating customer profiles, the FTC enforcement actions, responses to Federal and state regulators, retail mobile location analytics (RMLA) usage, the use of email matching programs to create and share audience groups with third parties, using audience-matching tools from social media websites to create ad-tech campaigns targeted at certain groups, using refined data from third-party sources to create customized reports on individuals or groups for sale, using proprietary information gleaned from DMPs or relationship management platforms (RMPs) to create reports on individuals or groups for sale.

Preparation of detailed data privacy impact assessments utilizing data mapping.

Provided training for management and personnel regarding ad-tech.

Functional understanding about how the various applications, components and platforms in an ad-tech stack operate.

Consultation regarding consumer protection, data protection, data security, digital advertising businesses, intellectual property, privacy issues in the context of advertising-related technology.

Legal support for global content-driven and data-driven domestic and international initiatives and projects involving ad-tech, data analytics, data solutions, digital advertising technology, and in compliance with global data protection laws

Familiarity with both business-to-business (B2B) and business-to-consumer (B2C), in the context of the digital advertising ecosystem.

Collaboration with research and development (R&D) business units, to implement privacy-by-design (PBM) in new products and services, particularly in the ad-tech and mobile communications spaces.

Analysis of data-driven business unit activities to understand global privacy and other potential legal risks, for the purpose of determining how to reconcile legal risks with stated business objectives.

Performance of annual compliance and certification reviews.

Ad-tech firms may utilize many software platforms in their stacks, such as ad network service platforms (ANSPs), ad-tech software platforms (ATSPs), advertiser campaign management software platforms (ACMSPs), click fraud software platforms (CFSPs), cross-channel advertising software platforms (CCASPs), display advertising software platforms (DASPs), data management platforms (DMPs), demand-side platforms (DSPs), mobile advertising software platforms (MASPs), search advertising software platforms (SASPs), social media advertising software platforms (SMASPs), supply-side platforms (SSPs) and video advertising software platforms (VASPs).

Research, testing, use, recommendation, specification and procurement of various ad network services platforms (ANSPs) (enable advertisers to buy ad units from ad publishers in bulk across websites and then package such ads to sell to advertisers), such as Adpushup, AdSupply, Admixer.Network, MaxBounty, Perform, PopAds.

Research, testing, use, recommendation, specification and procurement of various ad-tech software platforms (ATSPs), such as Adobe Advertising Cloud, AdRoll Growth Marketing Platform, Amazon Advertising, Amobee, AppNexus Programmable Platform, Beeswax BaaS Platform, Criteo Dynamic Retargeting, Facebook for Business, FlashTalking Campaign Manager, Full-stack Ad Revenue Optimization Platform, Google Campaign Manager, Google DV360, Innovid, Kenshoo Universal Platform, Nielsen Marketing Cloud, Prisma, Quantcast Intelligence Cloud, Scope by 4C, TerminalOne, The Trade Desk.

Research, testing, use, recommendation, specification and procurement of various advertiser campaign management software platforms (ACMSPs) (used by advertisers to buy, manage, and track ads online, and can access various digital advertising channels including display, mobile, search, social, and video), such as Constant Contact, Facebook for Business, Google Ads, HubSpot Marketing Hub, Mailchimp All-in-One Marketing Platform, Wordstream.

Research, testing, use, recommendation, specification and procurement of various click fraud software platforms (CFSPs) (to detect when a bot, person or script imitates a click on an online ad directing a consumer to the website owned by the poster of the ad, who would ordinarily have paid a commission to the advertiser for every such click had such click been legitimate, but instead the ad is a fake, and the bot, person or script keeps clicking, thus generating revenue from the website owner to the person or the controller of the bot or script), such as Adjust, AdTector, AdWary, AdWatcher, AppsFlyer, Anura.io, Botman.ninja, CHEQ, Click Fraud K9, FRISS, ClickBraniacs, ClickCease, ClickGUARD, clickgum, ClixTell, Forensiq, Improvely, mFaaS, NS8 Protect, Opticks, PPC Protect, Spider AF, Trackier, trafficguard.

Research, testing, use, recommendation, specification and procurement of various cross-channel advertising software platforms (CCASPs) (enable businesses advertise across multiple digital advertising channels such as display, mobile, search, social and video), such as AdRoll, Basis, Bidalgo, Brandzookka, Celtra, Choozle, Criteo, Google Marketing Platform, Mediaocean Scope, StackAdapt, Marin Software, Roku OneView, RollWorks, TheTradeDesk, Quantcast Advertise, Verizon Media DSP.

Research, testing, use, recommendation, specification and procurement of various display advertising software platforms (DASPs) (enable advertisers to buy, manage and place display advertisements on websites, including banner, overlay and rich media ads), such as Amobee DSP, Atlas Solutions, Bannerflow, Brave, Conversant, Listrack.

Research, testing, use, recommendation, specification and procurement of various data management platforms (DMPs), such as Amobee DMP, MediaMath TerminalOne Marketing OS, ownerIQ, Roku OneView, SurveyCTO, V12 Data, Zeta Programmatic.

Research, testing, use, recommendation, specification and procurement of various demand-side platforms (DSPs) (typically offer pricing models such as CPA – cost-per-acquisition – CPC – cost-per-click – CPI – cost per install – CPM – cost-per-mille, meaning cost-per-thousand – for placing ads on channels such as desktop displays, mobile displays, mobile videos and social media platforms), such as AdCritter, Advangelists ADCreatr, Adzooma, AppLift, Bidtheatre, Fyber, GoBID!, Google Display & Video 360, Intentwise Amazon Advertising Optimization Platform, Matomy Media Group, Pocketmath, Quantcast, ReklamStore DSP.

Research, testing, use, recommendation, specification and procurement of various mobile advertising software platforms (MASPs) (enable companies to place banner and video ads on mobile devices such as smartphones and tablets), such as Choozle, Epom Ad Server, Flashtalking, LEADBOLT, RythmOne, Tik Tok Ads, WideOrbit, Yelp Ads.

Research, testing, use, recommendation, specification and procurement of various search advertising software platforms (SASPs) (also known as "paid search" or "search engine marketing" – SEM – software, which enables businesses to advertise on search engines such as Acquisio, Bing, Google and Yahoo, through the use of target keywords that are relevant to such businesses), such as Adobe Advertising Cloud, AdStage, Bing Ads, Finch, Google Ads, Google Marketing Platform, Kenshoo, Marin Software, Optmyzr, SEMrush, Sidecar, WordStream, YouTube Advertising.

Research, testing, use, recommendation, specification and procurement of various social media advertising software platforms (SMASPs) platforms (enable companies to advertise on social media sites such as Facebook, LinkedIn and Twitter), such as AdStage, Airpush, Constant Contact, Criteo Dynamic Retargeting, Facebook for Business, Facelift Cloud, FastTony.es, HubSpot Marketing Hub, LinkedIn Marketing Solutions, Madgicx, Mailchimp All-in-One Marketing Platform, MakeMeReach, Mars Media Group, OutboundEngine, ROI Hunter, Salesforce Advertising Studio, Smartly.io, SOCi, Sprinklr Modern Advertising, Twitter Ads, Unified, WordStream, XAd.

Research, testing, use, recommendation, specification and procurement of various supply-side platforms (SSPs) (enable publishers to monetize their websites by creating and selling inventories of advertisements to marketers on an impression-by-impression, or visitor-by-visitor, basis), such as 33Across, 360 Polaris, Accueil, AdBook, Adextech, Adform Publisher Edge, adfurikun, Admixer.SSP, Adperium for Publishers, AdRiver SSP, ADYOULIKE, AppNexusMarketplace, BounceX, Getintent, Google Ad Manager, Insticator, MoPub, Naviga Ad, ONE, OpenX, Operative.One, PubMatic, PubNative, RhythmOne, Rubicon, Smart AdServer, sovrn.

Research, testing, use, recommendation, specification and procurement of various video advertising software platforms (VASPs) (enable advertisers to buy, manage, and place video ads on websites), such as AdPlayer.Pro, Altitude, Gruuv Interactive, Liquidus, Netsertive, Rubicon Project, For Buyers, Telaria, TubeMogul, Viant Advertising Cloud.

Last updated 201119_2317