A unique device identifier that Apple assigns to each iPhone for third parties to track users for ad targeting — aka the IDFA (Identifier for Advertisers) — is itself now the target of two new complaints filed by European privacy campaign not-for-profit, noyb.
The complaints, lodged with German and Spanish data protection authorities, contend that Apple’s setting of the IDFA breaches regional privacy laws on digital tracking because iOS users are not asked for their consent for the initial storage of the identifier.
Noyb is also objecting to others’ being able to access the IDFA without prior consent — with one of its complainants writing that they were never asked for consent for third-party access yet found several apps had shared their IDFA with Facebook (per their off-Facebook activity page).
We’ve reached out to the data protection agencies in question for comment. Update: Spain’s AEPD confirmed it has received noyb’s complaint and said it will investigate — making no further comment at this stage.
While Apple isn’t the typical target for digital privacy campaigners, given it makes most of its money selling hardware and software instead of profiling users for ad targeting, as adtech giants like Facebook and Google do, its marketing rhetoric around taking special care over user privacy can look awkward when set against the existence of an Identifier for Advertisers baked into its hardware.
In the European Union there’s a specific legal dimension to this awkwardness — as existing laws require explicit consent from users to (non-essential) tracking. Noyb’s complaints cite Article 5(3) of the EU’s ePrivacy Directive, which mandates that users must be asked for consent to the storage of ad-tracking technologies such as cookies. (And noyb argues the IDFA is just like a tracking cookie but for iPhones.)
Europe’s top court further strengthened the requirement last year when it made it clear that consent for non-essential tracking must be obtained prior to storing or accessing the trackers. The CJEU also ruled that such consent cannot be implied or assumed — such as by the use of pre-checked “consent” boxes.
Europe’s top court says active consent is needed for tracking cookies
In a press release about the complaints, noyb’s Stefano Rossetti, a privacy lawyer, writes: “EU law protects our devices from external tracking. Tracking is only allowed if users explicitly consent to it. This very simple rule applies regardless of the tracking technology used. While Apple introduced functions in their browser to block cookies, it places similar codes in its phones, without any consent by the user. This is a clear breach of EU privacy laws.”
Apple has long controlled how third parties serving apps on its iOS platform can use the IDFA, wielding the stick of ejection from its App Store to drive their compliance with its rules.
Recently, though, it has gone further — telling advertisers this summer they will soon have to offer users an opt-out from ad tracking in a move billed as increasing privacy controls for iOS users — although Apple delayed implementation of the policy until early next year after facing anger from advertisers over the plan. But the idea is there will be a toggle in iOS 14 that users need to flip on before a third-party app gets to access the IDFA to track iPhone users’ in-app activity for ad targeting.
However, noyb’s complaint focuses on Apple’s setting of the IDFA in the first place — arguing that since the pseudonymised identifier constitutes private (personal) data under EU law they need to get permission before creating and storing it on their device.
“The IDFA is like a ‘digital license plate’. Every action of the user can be linked to the ‘license plate’ and used to build a rich profile about the user. Such profile can later be used to target personalised advertisements, in-app purchases, promotions etc. When compared to traditional internet tracking IDs, the IDFA is simply a ‘tracking ID in a mobile phone’ instead of a tracking ID in a browser cookie,” noyb writes in one complaint, noting that Apple’s privacy policy does not specify the legal basis it uses to “place and process” the IDFA.
Noyb also argues that Apple’s planned changes to how the IDFA gets accessed — trailed as incoming in early 2021 — don’t go far enough.
“These changes seem to restrict the use of the IDFA for third parties (but not for Apple itself),” it writes. “Just like when an app requests access to the camera or microphone, the plans foresee a new dialog that asks the user if an app should be able to access the IDFA. However, the initial storage of the IDFA and Apple’s use of it will still be done without the users’ consent and therefore in breach of EU law. It is unclear when and if these changes will be implemented by the company.”
We reached out to Apple for comment on noyb’s complaints but at the time of writing an Apple spokesman said it did not have an on-the-record statement. The spokesman did tell us that Apple itself does not use unique customer identifiers for advertising. Update: The company has now sent us this statement:
The claims made against Apple in this complaint are factually inaccurate and we look forward to making that clear to privacy regulators should they examine the complaint. Apple does not access or use the IDFA on a user’s device for any purpose. Our aim is always to protect the privacy of our users and our latest software release, iOS 14, is giving users even greater control over whether or not they want to allow apps to track them by linking their information with data from third parties for the purpose of advertising, or sharing their information with data brokers. Our practices comply with European law and support and advance the aims of the GDPR and the ePrivacy Directive, which is to give people full control over their data.
In a separate but related recent development, last month publishers and advertisers in France filed an antitrust complaint against the iPhone maker over its plan to require opt-in consent for accessing the IDFA — with the coalition contending the move amounts to an abuse of market power.
Apple responded to the antitrust complaint in a statement that said: “With iOS 14, we’re giving users the choice whether or not they want to allow apps to track them by linking their information with data from third parties for the purpose of advertising, or sharing their information with data brokers.”
“We believe privacy is a fundamental human right and support the European Union’s leadership in protecting privacy with strong laws such as the GDPR (General Data Protection Regulation),” Apple added then.
That antitrust complaint may explain why noyb has decided to file its own strategic complaints against Apple’s IDFA. Simply put, if no tracker ID can be created — because an iOS user refuses to give consent — there’s less surface area for advertisers to try to litigate against privacy by claiming tracking is a competitive right.
“We believe that Apple violated the law before, now and after these changes,” said Rossetti in another statement. “With our complaints we want to enforce a simple principle: trackers are illegal, unless a user freely consents. The IDFA should not only be restricted, but permanently deleted. Smartphones are the most intimate device for most people and they must be tracker-free by default.”
Another interesting component of the noyb complaints is they’re being filed under the ePrivacy Directive, rather than under Europe’s (newer) General Data Protection Regulation. This means noyb is able to target them to specific EU data protection agencies, rather than having complaints funnelled back to Ireland’s DPC — under the GDPR’s one-stop-shop mechanism for handling cross-border cases.
Its hope is this route will result in swifter regulatory action. “These cases are based on the ‘old’ cookie law and do not trigger the cooperation mechanism of the GDPR. In other words, we are trying to avoid endless procedures like the ones we are facing in Ireland,” added Rossetti.
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