In the final weeks of 2012, the debate over establishing a global “Do Not Track” standard, which would establish a way for individuals to control how data brokers, marketers, and other online advertising networks use their personal data, has reached a new stage. The question is whether that stage represents a new beginning for the industry, policymakers and privacy advocates, or simply more of the same contentious disagreements over handling consumers’ data.
In late November, the World Wide Web Consortium (W3C), an international standards organization, appointed a new mediator, Peter Swire, to facilitate further talks between industry groups and privacy advocates. Swire, a law professor at Ohio State University who worked as chief counselor of privacy in the Clinton White House, told The New York Times he envisioned the Do Not Track initiative as analogous to the Do Not Call list, a national registry that allows consumers to opt out of receiving phone calls from marketers.
Privacy advocates largely viewed the switch as a bad sign for the process of creating a standard, which began two years ago and appeared to have strong industry support as recently as February 2012, when the Obama administration unveiled an online bill of rights at a White House event.
“The appointment of Mr. Swire needs to be seen in the context of a breakdown in the Do Not Track process,” said Jeff Chester, executive director of the Center for Digital Democracy, a Washington, D.C., nonprofit group devoted to protecting consumers online. “The resignation of Ms. McDonald can only be viewed as a statement of disapproval of the current W3C process.”
Chester’s concern is echoed in some recent events. In October, Rep. Joe Barton (R-Tex.) and Rep. Edward Markey (D.-Mass.), co-chairs of the Privacy Caucus, issued a statement expressing their disappointment in the Digital Advertising Alliance, which encouraged its members to ignore the Do Not Track default protocol that Microsoft built into its newest version of its browser, Internet Explorer 10.
Reps. Barton and Markey were behind the Do Not Track Kids Act of 2011, and have worked with the Federal Trade Commission to amend the Child Online Privacy Protection Act of 1998 (COPPA) to reflect the incursion of new data-gathering technologies.
The Association of National Advertisers also opposed Microsoft’s Do Not Track default browser setting, which blocks data-gathering advertisements unless the user alters it. Two other industry groups, the Council of Better Business Bureaus and the Direct Marketing Association, said they will not penalize members who ignore Do Not Track browser settings.
Also in October, Sen. Jay Rockefeller (D.-W. Va.), who heads the Senate Commerce Committee, registered his support for the Federal Trade Commission’s Do Not Track efforts in a letter to FTC chairman Jon Leibowitz. Sen. Rockefeller urged the FTC to continue working with W3C to establish a Do Not Track standard, National Journal reported.
In May 2011, Sen. Rockefeller introduced a Do Not Track bill that would put into law consumers’ right to restrict access to their personal information online and grant the FTC broader power to dictate Do Not Track policies. This week, a Commerce Committee staffer confirmed that no new activity would occur regarding the bill until the Senate reconvenes in January.
Meanwhile, advertising networks such as ValueClick have been pressuring lawmakers to intervene on their behalf, expressing concern about the FTC’s role in the W3C’s Do Not Track process.
Both Mozilla and Apache, developers of open-source browsers, have registered disapproval of Microsoft’s decision to ship its browser with a Do Not Track default. But Microsoft’s executive vice president of corporate and legal affairs, Brad Smith, wrote this week in a blog post that consumers in the U.S. and Europe backed Microsoft’s position and that the company hopes that a self-regulatory approach to online privacy succeeds in 2013.
All of this back and forth supports the notion that both sides in this online privacy scuffle will have to start from scratch in the new year. That leaves Do Not Track as it currently stands, resembling nothing close to a standard.
But if agreement on an appropriate Do Not Track mechanism is not achieved, the next option pursued by regulators could be far less appealing: a law permitting ad blocking.
Still, while some suggest President Obama’s reelection might reignite the Do Not Track initiative, and that Mr. Swire may create a new consensus, others express a note of resignation.
“The star can’t go on, so they’ve brought in a replacement, and Mr. Swire is a good understudy,” said the CDD’s Chester. “But they’re not doing a revival of The Miracle Worker. Nonetheless, we wish Mr. Swire well.”
Alec Foege is a writer and independent research professional based in Connecticut, and author of the upcoming book The Tinkerers: The Amateurs, DIYers, and Inventors Who Make America Great. He can be reached at firstname.lastname@example.org. Follow him on Twitter at @alecfoege.