The Data Behind the Marketing: Privacy Law for Brands
By Casey Scott McKay ·
Every consumer brand now runs a data-processing operation whether or not anyone at the company describes it that way, and the marketing stack is where the legal exposure concentrates. This article maps the four sources of that exposure - state comprehensive privacy statutes, old federal statutes being applied to new technology, the FTC's unfairness and deception authority, and private rights of action with statutory damages - and explains why the third-oldest of them is currently producing the most litigation. It works through the tracking pixel problem in detail, because a single line of vendor JavaScript has generated more claims against consumer brands in recent years than any other artifact. It covers the sale-and-share concept that catches adtech, the opt-out signals a brand must honor, the biometric and health-data statutes that carry the largest per-violation numbers, and the vendor contracts that determine who is liable when a processor misbehaves.
IP and Technology > Privacy Data Security | Article | Published 4 November 2025 - Updated 25 February 2026 | Casey Scott McKay - marksy.us IP and Technology > Privacy Data Security | Article | Published 4 November 2025 - Updated 25 February 2026 | Casey Scott McKay - marksy.us Summary. Every consumer brand now runs a data-processing operation whether or not anyone at the company describes it that way, and the marketing stack is where the legal exposure concentrates. This article maps the four sources of that exposure — state comprehensive privacy statutes, old federal statutes being applied to new technology, the FTC's unfairness and deception authority, and private rights of action with statutory damages — and explains why the third-oldest of them is currently producing the most litigation. It works through the tracking pixel problem in detail, because a single line of vendor JavaScript has generated more claims against consumer brands in recent years than any other artifact. It covers the sale-and-share concept that catches adtech, the opt-out signals a brand must honor, the biometric and health-data statutes that carry the largest per-violation numbers, and the vendor contracts that determine who is liable when a processor misbehaves.
Keywords: tracking pixel litigation · video privacy protection act · california invasion of privacy act · ccpa cpra sale and share · global privacy control · universal opt-out · state comprehensive privacy laws · biometric information privacy act · my health my data act · coppa children's privacy · tcpa text marketing · can-spam · ftc section 5 unfairness · dark patterns · data processing agreement · service provider contract · rights request workflow · cookie consent · adtech vendor audit · retargeting
Your marketing team built a surveillance system and called it analytics
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