An Uncertain Future For Do Not Track

by Perkins Coie
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On Tuesday, July 16, 2013 the Tracking Protection Working Group of the World Wide Web Consortium (W3C) rejected a proposal put forward by the Digital Advertising Alliance (DAA) to reframe the activity covered by Do Not Track (DNT) signals.  After nearly two years of discussions, thousands of emails, and eight face-to-face meetings, the group appears to be at an impasse as it approaches the expiration of its charter on July 31.

The DAA’s proposal would have limited the ability of companies to retain the specific URLs visited by a user, but would have permitted the continued collection and use of general information about the user’s presumed interests (such as “interested in travel”).  The DAA submitted the proposal in response to rising DNT adoption rates attributable to browsers, antivirus programs and others turning on DNT signals without direct user interaction. Industry representatives believe that current adoption rates do not reflect actual user choice and that its proposal stood the greatest chance of acceptance by the companies that would be required to respond to DNT signals. Under the DAA’s proposal, users who wished to opt out of retargeting and other forms of behavioral advertising would have been required to exercise a choice using existing cookie-based opt-out tools; the DNT flag only would have required companies to implement heightened data hygiene and data retention requirements.

Objections to DAA's Proposal

Privacy advocates and others, including Mozilla and Apple, objected to the DAA’s proposal on both procedural and substantive grounds.  They argued that the DAA’s proposal would not protect user privacy and failed to meet the five criteria set forth by the Federal Trade Commission in its March 2012 Privacy Report: (1) that it be implemented universally to cover all parties; (2) that it be easy to find, easy to understand and easy to use; (3) that choices should be persistent; (4) that it be comprehensive, effective and enforceable, and opt users out of behavioral tracking through any means; and (5) that it opt users out of collection of behavioral data for all purposes other than those that would be consistent with the context of the interaction.

After reviewing comments submitted last Friday, the co-chairs of the WC3 working group, Peter Swire and Mathias Schunter, rejected the DAA proposal, finding it “less protective of privacy and user choice than their earlier initiatives.” Rather, the authors found that the group should continue to work from what is known as “the June draft,” which in their estimation would be “more likely to lead to a standard that reaches the group’s objectives.”  Some industry representatives object, in particular, to language in the June draft that would require companies to avoid using “unique identifiers for users or devices if alternative solutions are reasonably available,” contending it is unworkable and vague.

Prospects for Reaching Consensus

With a July 31 deadline for the working group’s work looming and many issues unresolved, the possibility of the group reaching consensus appears uncertain at best.  Both privacy advocates and industry representatives have expressed skepticism that the group’s work should continue for much longer. The DAA has stated that companies “are not going to adhere to DNT flags that are not set by consumers and thus do not reflect the consumer’s choice.”

If the group does not reach consensus, attention will shift to Congress and the Federal Trade Commission. The FTC called on the industry to finish the implementation of DNT in its March 2012 Privacy Report, and FTC Chairwoman Edith Ramirez recently called a functioning Do Not Track mechanism “long overdue.”  On Capitol Hill, Senator Jay Rockefeller recently reintroduced his “Do-Not-Track Online” bill and held a hearing on the state of Do Not Track efforts.  The failure of the W3C to reach consensus could breathe life into those initiatives.

Meanwhile, individual companies continue to adopt and implement their own solutions to Do Not Track. Twitter, for example, won praise for its decision to honor DNT headers as a “do not collect” signal. Some “third parties” have also agreed to honor DNT signals, generally by treating them similarly to an opt-out cookie.

Regardless of the end result of the W3C process, if Mozilla follows through with its plan to block third-party cookies by default, companies will doubtlessly reevaluate their tracking methods and business plans. Alternate tracking methods such as device fingerprinting raise complicated legal and policy questions.  Companies should consult with privacy counsel to ensure that any responses to DNT headers or browser changes are consistent with their own privacy representations and with regulatory and self-regulatory initiatives.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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