On March 16, 2023, the FTC published an overview of its analysis on pixel tracking technology. Referencing its recent enforcement actions against GoodRx and Betterhelp, the FTC makes clear it is taking an in-depth look at companies’ tracking tools. The FTC’s guidance provides a comprehensive explanation of the backend functionality of pixel tracking, identifying three primary concerns with the technology:

• Consumer Consent: Traditional opt-out mechanisms for tracking technologies such as third party cookie blockers may not allow consumers to appropriately opt-out of pixel tracking. And, because the user cannot perceive the pixels, consumers may be unaware they exist at all. This lack of consent is particularly problematic when companies are collecting sensitive data, as was the case with GoodRx and Betterhelp.
• Lack of Clarity: Third parties may use pixels to identify individuals through social media matching or other methods. Such data collection and sharing, coupled with dark patterns, may result in consumer confusion.
• De-identification: Methods of de-identification or anonymization may not be effective. For example, while some pixels may hash personal information, individuals could still be identified through a reversal of the hash or through links across various databases.

The FTC also provides an extensive list of future research questions including:

• What unique consumer harms can result from the use of pixel tracking technologies?
• What financial impact does pixel tracking have on advertising networks, data brokers, social networks, advertisers, and other parties?
• To what extent do first parties internally share data to use for purposes that consumers might not reasonably expect?

It is clear from the extensive technological explanation of the tracking tools that the FTC is carefully investigating the backend data collection on company websites. As the FTC continues its increased focus on privacy, is not enough for companies to simply draft and post a privacy policy. Companies should also be well versed in the functionality of their deployed technologies and be in continuous conversations with any vendors that provide tracking tools.