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FTC’s 'Do Not Track' Proposal Elicits Strong Reactions
Posted On December 9, 2010
Reaction is growing to a U.S. Federal Trade Commission (FTC) proposal to develop a national “Do Not Track” tool for internet users. The proposed tool would allow users to prevent web companies from tracking their browsing activities for marketing or other purposes. Reaction from consumer groups, marketing and other internet stakeholders, and from government and Congressional officials has focused on the viability, value, and costs of such a tool.

The Do Not Track proposal was included in an 80-page report issued on Dec. 2, entitled “Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers.” The report outlines a number of challenges for both consumers and businesses for managing privacy in the online world. The report notes that consumers, “live in a world where information about their purchasing behavior, browsing habits and other online and offline activity” is collected and used, often without their knowledge or consent. Businesses, however, often rely on this information to provide their “customers with new and better products and services.”

The report identifies a Do Not Track tool as one element of a multi-part framework to protect consumer privacy. The framework encourages businesses to build privacy protections into their everyday business practices. This would include providing information security, collecting only the data needed for a specific business practice, retaining data no longer than necessary, safely disposing of data, and taking steps to ensure data accuracy. Companies would also be required to provide streamlined, simple options to consumers about the collection and use of data. Companies would also make their data practices more transparent to consumers through clear, concise, and easy-to-read privacy policies. Consumers should also have reasonable access to data that is maintained about them. Finally, all stakeholders would be encouraged to educate consumers about data practices and the choices available.

Do Not Track was identified as the “most practical method” of providing consumer choice about the collection and use of information about their web searching and purchasing activities. The report noted that the collection of this type of information for marketing is often “invisible” to consumers. Consumers may also be confused by, or unaware of options and mechanisms for allowing consumer choice in tracking. The Do Not Track option would address those concerns by placing a setting on consumer web browsers that would convey signals about whether the consumer wants their information tracked or wants to receive behavior targeted advertising.

Although often compared to the national Do Not Call telephone registry, Do Not Track would not involve consumers signing up for and providing an IP or other identifier as is done with phone numbers. The FTC noted that IP numbers often change frequently. Also, consumers are increasingly using multiple platforms, such as desktop computers, laptop computers, and smartphones for accessing the internet, so they need a solution that is not tied to a specific platform.

The FTC asked for further comments and feedback on questions about the mechanics of the Do Not Track tool, including answers to questions such as how it would be offered to consumers and publicized, how to make it clear and understandable, and should it have options to enable consumers to make choices about data collected about them, as opposed to an “on or off” system.

The FTC is likely to get those comments and feedback if the initial responses to its report are any indication. The first significant reaction occurred at a previously scheduled hearing of the House Subcommittee on Commerce, Trade and Consumer protection, which took place the day after the FTC report was released. Lawmakers at the hearing spoke in support of the need for some level of legislation to support online privacy, and one representative, Rep. Ed Markey (D-Mass) indicated that he would introduce legislation to institute Do Not Track restrictions for children.

However, concerns were expressed about both the effectiveness of a Do Not Track tool, and the economic risk that it could raise. Several witnesses pointed out that a substantial amount of the “free” internet is reliant on advertising-supported content. A Do Not Track system, they argued could “inhibit innovation and the development of new services,” as well as put employment at those companies at risk.

Other commentators have raised concerns about whether a Do Not Track tool would be effective or even necessary. As proposed, the Do Not Track tool would essentially send a signal from the user’s browser to a receiving website not to track or retain information about the user’s visit. This would have an effect on restricting behavior advertising, in which specifically targeted advertising is sent to a user based on the user’s browsing history or “behavior.” The argument against Do Not Track is that as advertising is likely to be delivered to the user anyway, it is better for both the user and the advertiser that the ad be targeted toward the user’s perceived interests.

While behavior advertising is a significant part of the internet marketplace, it is not the only privacy problem. Data that a user enters into a website such as Amazon or Facebook would be outside the scope of Do Not Track. Do Not Track would also not address email and its problem of spam and viruses. Also not covered would be contextual advertising, which is based on specific searches, such as the ads for Jamaican travel you might see on a Google page after searching for “Jamaica.” In an interesting contrast, several publishers expressed some support for Do Not Track pointing out that some online ad networks “skim” their contextual search data and sell it to behavioral advertisers. Do Not Track could limit that.

All parties seem to agree on the need for stronger online privacy protection. The FTC report says that privacy should be a “basic consideration” of business, on the same level as tracking revenues or strategic planning. But whether that protection should be mandated through legislation or left to self regulation remains debated. Would Do Not Track benefit privacy or hurt consumers? Would it be effective and valuable, or damage the economy? Can it work in a global environment? Do Not Track is part of the debate, but not its resolution.

George H. Pike is the director of the Pritzker Legal Research Center and a senior lecturer at the Northwestern University School of Law. Previously, Pike was director of the Law Library at the University of Pittsburgh School of Law, and held professional positions at the Lewis and Clark Law School and at the University of Idaho School of Law, and was a practicing attorney in Idaho Falls, Idaho. Pike received his B.A. from the College of Idaho, his law degree from the University of Idaho, and his M.L.S. from the University of Washington. He is a member of the American and Idaho State Bar Associations, the American Association of Law Libraries, and the American Intellectual Property Lawyers Association.

Email George H. Pike

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