• by Wendy Davis , Staff Writer @wendyndavis, May 2, 2016

Earlier this year, Clear Channel unveiled a new outdoor advertising initiative that involves telling marketers whether their stores are visited by consumers who have viewed ads on billboards.

Clear Channel's new program reportedly draws on location and demographic data from at least three other companies: AT&T, PlaceIQ (which uses location data from apps) and Placed (which pays customers to track them). Clear Channel told The New York Times that the data, which is anonymous and aggregated, doesn't identify individual customers.

When the program rolled out, Sen. Al Franken (D-Minnesota) criticized Clear Channel for failing to clearly explain its plans to consumers. "Given the sensitive nature of location data, all parties involved in Clear Channel's Radar service should provide clear and comprehensive privacy policies and should disclose detailed information about their data-sharing relationships with other companies," Franken said in a letter sent to the company in March. "Unfortunately, as currently written, Clear Channel's privacy policy, which appears to apply to all of its products and services, leaves consumers largely in the dark."

Clear Channel answered Franken, but the company's response has yet to be made public. Franken told the Minnesota Post last month that he appreciates "Clear Channel’s willingness to provide detailed information" and will "continue to keep the dialogue open between my office and the company."

Now, a second lawmaker is raising concerns about Clear Channel's program. Sen. Chuck Schumer (D-New York) is urging the Federal Trade Commission to investigate whether Clear Channel's "spying billboards" are an unfair or deceptive practice.

"Clear Channel Outdoor has tens of thousands of mobile and digital billboards across the United States and plans to provide advertisers with data on individuals who pass its billboards -- some of which are equipped with small cameras that collect information," Schumer says in a letter to the FTC. "Using the data and analytics, Clear Channel can amass a collection of information, such as the average age and gender, about individuals who view a particular billboard, in a certain place, at any given time. I am worried about the way this data will be collected for so many unsuspecting individuals."

He wants the FTC to investigate whether Clear Channel "is acting transparently in this initiative," and whether consumers should be able to opt out of the sale of their data.

For its part, Clear Channel suggests that people have misunderstood the initiative. The company has reportedly denied that its billboards are equipped with cameras that capture information about consumers.

Instead, a spokesperson says it purchases "aggregated and anonymized statistical reports" from third parties. The spokesperson also says that the companies compiling those reports either allow consumers to opt out or obtain their opt-in consent.

"This type of campaign planning, attribution and measurement solution has existed for years in other media and is now being applied to out-of-home media,” the spokesperson says.

Clear Channel can hardly blame people for not understanding the program, given its vague explanations of the initiative. The company said in a Feb. 29 announcement that it uses "mobile-derived, location-based data." While Clear Channel said the data came from AT&T, Placed and PlaceIQ, it didn't explain what precise information came from which company, or how the data was analyzed.

Although Clear Channel says the data is anonymous, that conclusion isn't especially helpful, given that policymakers and courts about what kind of information is "anonymous."

Last week, FTC consumer protection head Jessica Rich blogged that the agency considers data personally identifiable when it can be "reasonably linked" to a computer or device. "In many cases, persistent identifiers such as device identifiers, MAC addresses, static IP addresses, or cookies meet this test," she wrote.

Location data often is seen as especially sensitive. Consider, on Friday a federal appellate court ruled that Gannett may have transmitted personally identifiable information by allegedly sending users' device identifiers and GPS coordinates to Adobe.

Jules Polonetsky, CEO of the think tank Future of Privacy Forum, tells MediaPost that Clear Channel would do a service to consumers by providing more information about how its program works. "It may not be deceptive, but it's certainly not transparent -- which is driving the concerns," he says.