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Dominique Shelton is a partner in the intellectual property department of Edwards Wildman’s Los Angeles office. She advises advertisers, product manufacturers, and cable studios regarding privacy, regulatory issues arising from Web 3.0 marketing, behavioral advertising, social networking websites, user-generated content, and digital advertising. She can be reached at firstname.lastname@example.org. The author wishes to acknowledge the contributions of her colleagues Alan L. Friel, Laurie A. Kamaiko, and Mark E. Schreiber to the material used in this article.
2012 began with over 100 consumer class actions pending in the U.S. courts, relating to companies tracking users’ behavior online and on mobile devices in order to create targeted advertisements. Targeted advertising has become global and ubiquitous.
Online behavioral advertising (OBA) is a type of targeted advertising, by which companies track consumers’ online activities to target them for digital advertising directed at their specific interests. Digital advertising is an $80.2 billion industry.1 With online ad spending now exceeding that of print advertising, the appropriateness of using OBA, particularly the level of notice afforded and consent required of consumers, is increasingly being scrutinized. Other forms of tracking customer online behavior also are under attack. In December 2011 alone, over 60 class actions were filed against the mobile industry for tracking user behavior for internal analytics and measurement purposes, rather than for advertising purposes.