This decade’s most important marketing question: What data rights do advertisers possess?

Google’s move to reduce advertisers’ visibility into search terms reporting raises big questions about data access in the age of automation.

With Google’s latest decision to strip Search Terms data insights from advertisers (some agencies have reported around 25%-30% or more of data loss), the frustrated outcry has caused some to begin throwing around lawsuit language.

Specifically, there seem to be three main reactions to this change:

1. Those who believe that advertisers own the data outright, or at least the data is part of what they are paying for, and thus have every right to all data. These are the most likely to be outraged, as they believe their rights have been stripped away with decisions such as this.
2. Those who believe Google (or the platform) owns the data, and that advertisers are simply playing within the elected program. These are the most likely to ignore the recent hubbub (or even this article!) and simply believe that advertisers should roll with the changes.
3. Those somewhere in the middle. They may not have a hard and fast opinion on who does or does not own the data, but they also believe that advertisers do have certain rights and the platform cannot simply do what it wants without potential legal ramifications or oversight.

Why is the data ownership conversation so important to marketing?

While I am no expert on data privacy, and you really should not come to me for legal advice (there you go, that’s the legal addendum you expected), I did want to at least investigate data rights and ownership and share that with the marketing community.

What I have found is likely no surprise, and why I believe this is the most important conversation happening right now, and in the near future with Digital Marketing. This gets into the privacy conversation. This gets into the data storage conversation. This gets into the automation conversation. This gets into marketing in nearly every way possible at this time. I don’t think it’s an exaggeration, to say this is *the* conversation that will shape the Digital Marketing industry for decades.

Personally, I’m happy for conversations that move things forward in helping us be ever-safer with online data usage and storage. Though I am admittedly alarmed by legislators making decisions impacting our industry who don’t know how Facebook makes its money. How can you properly legislate the ad industry if you do not understand the fundamental existence of the ad industry…but, I digress.

What do I believe is the core question that will most impact marketers in the coming decades?

I believe it is this: “What rights do advertisers have to the marketing data we utilize for our decisions?” It’s not a complicated question at first blush, but the more we plumb its depths, the more we identify additional complications. Let’s dig into those next.

Who owns your search term data, the one storing it or the one paying for it?

This question is one we began to have internally at ZATO, as we disagreed on the answer. And that is what spawned this post. Well, of course the one paying for the data owns it! I scoffed. Then a logical disagreement was brought up and I backed off my firm position.

Is the one who creates and stores the data physically the owner of that data? Who can determine exactly what is to be done with that data? Well, it’s complicated, and to my knowledge (I haven’t read every court decision in the past 10 years on this) that’s still being argued in certain courts. Winning Tech writes of the Microsoft SCA case in which the question was whether the (US) feds could access their data by court order if it was physically housed in Ireland. The decision? Well it flip-flopped. It seems that physical server location is important, but not the only thing to take into consideration…and shockingly, courts disagreed on the outcome. It’s complicated.

Isn’t the one who pays for the data the owner? That makes sense, right? If you buy a Big Mac, you get determine whose belly that Big Mac enters.

But in terms of data, thus far it doesn’t appear that the one paying for the data owns the data (I’m not a lawyer, remember). Certainly the recent fine from Facebook for inflating video views suggests there are certain rights to data that advertisers have (even if only “the right not to be lied to), and also revealed how important the accuracy of data is to business decision-making, but it didn’t necessarily communicate that advertisers own that data.

That being said, throw the actual person into the mix as well (hence, CCPA and GDPR), and this stuff just got even more complicated. You remember the person, yeah, she’s the one handing off that data to be argued over by Google and advertisers. What sort of ownership rights does she have?

Here is how I personally (not an attorney, personal opinion here) believe the advertisers relationship to data is. I believe it is more like a lease/landlord situation.

[Read: How much does Google’s new search term filtering affect ad spend transparency? Here’s how to find out]

If I lease my office space, I own the building now right? I’m paying for it! As we all know, of course not. I simply pay for certain rights to the space.

I believe this is likely what is happening with a data rights and ownership situation between Google and advertisers. We advertisers probably do not own the data (that’s an argument between Google and the person handing over the data and the Supreme Court), we are only paying for the rights to access it…like a lease. We can store the data we get from platforms like Google, and thus have some sort of ownership rights ourselves to it as advertisers. As a sidenote, that’s where it gets even messier. Does that mean there are now two sets of owned data based on those duplicates? I don’t know. Smarter people are probably arguing over that now for obscene amounts of money.

By the way, it appears this is also what Google believes based on its Advertising Terms and Conditions.

In short: advertisers agree to very little rights with Google. Of course, that doesn’t mean this is legally or ethically correct, but it is an important point for Google since advertisers agree to the Terms and Conditions upon beginning with Google, and those T&C do not guarantee any sort of data rights other than impressions.

Curiously, as I did my research for this article, I randomly discovered Google used to guarantee some sort of Impression-based reporting in an old version of the T&C housed here. While impression data alone is slightly more beneficial than throwing rocks at a charging Montana Grizzly Bear, it does mean that at some point in the past, there was an accepted understanding by Google that users have some form of access rights to some form of data.

The question we should be asking as PPCers

This is crucial, because even if we are paying for access in a lease situation, we should be asking an even more important question than “who owns the data”.

PPCers are looking at Google’s new decision to remove Search Terms from their reporting and questioning Google as if advertisers own the data (since they’re paying for it). While frustrating, it’s quite possible that Google is shrugging its collective shoulders because it knows we have no rights to that data (see above discussion). We are simply leasing it from them and they can determine which data points to turn on and off like a spigot (by the way, I’ve written elsewhere that I am increasingly alarmed by decisions like that which demonstrate Google’s lack of interest in what its partners have to say on the matter, thus showing an imbalance in a relationship that certainly cannot last forever).

All that to be said, I think the drum we advertisers need to be beating isn’t primarily “who owns the data”, though certainly let’s get that determined.

I think the primary drum we need to be beating, with potentially more legal precedence, is “what data do we advertisers have the RIGHT to access?” 

If we argue data ownership and lose, game over. If we argue “access rights”, it’s a new ball-game.

Google’s Own Language

Here is a curious thing, and one in which a lesser man (certainly not me) might utilize a statement such as “hoisted by its own petard”. Google itself claims in its third party policy with advertisers, that there is certain data necessary to show to the one actually paying money to Google for Ads Program usage. In other words, a Paid Search agency like my own, must share certain data with advertisers in order to align itself with Google’s Third-Party policies.

See the “Transparency requirements” section here:

Of course, Google is masterful at keeping clearly defined language from sneaking into this policy. It’s not like they claim “search terms data is significant” for agencies, and then don’t show that data themselves. However, what I gather from this, is Google’s admittance that an advertiser has certain access to data rights because of their payment to the Platform to use the advertising service and I think *that* is where the upcoming battles will be fought.

In other words, the question isn’t “do advertisers paying Google have certain access rights to data”? Because as I have shown above, Google themselves believes there to be some level of access rights.

The question is, “to which data do advertisers have access rights”? 

This is where it gets complicated, and I will have to send you to a previous column I have written on this topic asking exactly this: Marketing Automation and Data: 2 Contradictory Elements We Need to Discuss.

The TL;DR of that column is that certain data points are more important for success to one business than they are to another. It may be that some businesses are impacted more significantly from losing 30% of search terms data than other businesses. That’s the nature of business, and in this author’s opinion, it is precisely why the best solution is for Platforms to cease the obfuscation of data for the sake of more automated campaign types that may or may not work as well for all advertisers.

A combination of the two would make sense. Increased advances in automation for those who don’t care about specific control and data access, plus full access to the data-sets for those advertisers who believe they need it. This will likely take some work and is certainly not the most efficient way to do business for Google, but it is arguably the best way to do business.

At some point, doing business with so many unique entities isn’t solely about efficiency that utilizes averages. Automation shines with grouped efficiency and averages…not shared and thus manually managed data. That is also why social audiences are becoming more popular over and above search terms data with Google (grouped averages are easier to automate well), even though the search term and keyword is why Google has always shone brighter than other marketing channels and is what continues to draw new advertisers to the platform (I know because I talk to them, small businesses LOVE the ultra-targeted nature of the keyword…a targeted nature that continues to be lost with additional close variant changes).

The problem for Google is the businesses who don’t fit into those averages, but also have a right to certain data since they are also paying for the ad program, especially small businesses.

My question is, isn’t that the cost of doing business with people, especially lots of people?

The small realtor in Billings, MT, paying Google pennies is part of the advertising ecosystem, and has equal data access rights as the billion dollar travel entity.

An engineer’s brilliant plan for an automated system that would work for the billion dollar travel entity, but result in the failed account of the small realtor isn’t actually the right way…even if it’s more efficient for some automated program.

Doing business with so many different people is messy, and can’t always be boxed up neatly into a closed-system, automated process. Sometimes the best thing you can do as a platform is to understand that profit and efficiency is at risk, but seek the solution that allows for the most data-points to be accessible so all paying customers can utilize your advertising solution.

At least, that is my opinion.

At some point in the very near future, “data access rights” will likely be decided in a high court somewhere, and I guess we’ll all watch with fascination and trepidation.