• by Dave Morgan , Featured Contributor, August 25, 2005

Like it or not, if the growing controversy surrounding the misuse of cookies by our industry and their deletion by consumers is to be solved, it will be up to the publishers to do it.

I had the great fortune to spend Monday in Toronto at the AdMonsters conference debating the issue on a panel with Walt Mossberg of The Wall Street Journal, Esther Dyson of Release 1.0, Kiumarse Zamanian of Yahoo!, and Bowen Dwelle of AdMonsters. In attendance, and very much part of the debate, were the heads of ad operations from almost all of the 50 largest ad-supported sites on the Web. It was quite a session. In spite of the fact that each of us has historically taken positions quite opposite from the others, everyone largely agreed almost immediately on a couple of key points. (Disclaimer: I can't speak for the panel and the audience, so this is my version of the discussion.)

The online ad industry is facing a large and growing problem with consumers not understanding or trusting cookies that are placed on their browsers, equating them with spyware. This problem is not going away. It is only going to get worse.

It doesn't matter if cookies are not executable software like spyware; consumers don't understand the differences and don't care. They are now in charge. As long as they continue to perceive that a problem exists, they will continue to use software tools and other means to delete cookies and anything else that identifies and tracks them without their consent.

Consumers will only be happy and well served if every company that tracks and uses consumer information is fully transparent about what data is being tracked, how it is being used, and if consumers are given the opportunity to consent to participate in the process.

Publishers are the ones that will have to lead the effort for transparency and consent, as well as police the process, since they are the ones with regular, recurring, and direct relationships with consumers and are the "gatekeepers" that advertisers and their agencies pay to contact and engage those consumers.

Trackable consumer data is becoming a very powerful driver in the digital marketing arena. If publishers do a good job of getting consent and providing value to consumers in exchange for data, they can probably build very large and profitable businesses doing it. Thus, it may not only be good public policy, it is probably good business.

All of these points are certainly still subject to debate by many, but for publishers, the debate must end now. It is easy to look at all of the logistical challenges of providing consumers with notice and an opportunity to consent when cookies are used -- I outlined many of them in my last column -- however, we can't forget that it is the publisher that provides the consumer access for advertisers and their service companies. If publishers don't take the lead, if publishers don't police the use of cookies that capture and exploit consumer data, who will?

How should publishers start? Here are my thoughts.

Notice and consent. Publishers must develop a policy to provide clear and transparent information about how they use cookies or similar technologies. Putting this information in their privacy policies is only the first step, not the last. Basically, publishers should establish themselves as the consumers' trusted partner for data-targeted advertising.

Information and control. Publishers must begin to understand and control how their sites are being used by others to cookie their consumers. They must recognize that their media has and continues to be the channel of choice for spyware companies and brokering companies that place cookies as part of campaigns to "harvest" those cookies. At the least, publishers should institute a policy that requires all advertisers and agencies to disclose to them: 1) a list of all cookies that will be placed on consumers' browsers as part of a campaign, together with the domains within which they will be set; 2) a description of what data will be captured and appended to cookies or a related database; and a description of what the captured data will be used for and for how long it will be kept.

Will there be challenges? Yes. Will ad buyers and service companies push back? Of course they will. Most ad agencies and advertisers don't even know all of cookies they and their service providers set. The cookies that agencies and their service providers set can change frequently between campaigns and during campaigns, so keeping track of all of these will be challenging, for sure. Collecting and monitoring cookie deliveries will make publishers' lawyers worry that they are taking on new liabilities, and may counsel against this. And, it could impact revenue. Since there are a number of large online advertisers that buy media for the primary purpose of capturing consumer data for reuse, it is likely that some of them will balk at disclosure, or refuse to advertise if disclosure is required.

What's the answer? Do it together. If publishers work together on this, they will have enough clout to get it done. Be loud. Be persistent. If you do it right, consumers and their advocates like Walt Mossberg, will be on your side. They will support you; they will reward you with their loyalty.