‘Do Not Track’ Dysfunction: Industry, Privacy Advocates Appeal to FTC

Business and consumer privacy interests are flinging letters at the Federal Trade Commission, decrying what they see as shortcomings in the Worldwide Web Consortum’s (W3C) process for setting the browser tech specs for Do-Not-Track.  In recent weeks the agency has received a letter from Republican lawmakers criticizing the standards making process and the FTC’s role in it, and one from privacy advocates asking for it to intervene on behalf of consumer data privacy.

The letters come ahead of the next in-person meeting of the W3C’s Tracking Protection Working Group (TPWG), planned for October 3 to 5 in Amsterdam. The rhetoric around DNT seems to escalate in the weeks before these face-to-face confabs. Last time the group met, in June, the burning issue was Microsoft’s decision to turn DNT on by default in the newest version of its Internet Explorer browser.

The latest letters call out issues such as the permissible use of first party data and whether websites should be exempted from honoring a default “on” browser setting such as Microsoft has done. While a number of core matters have been resolved regarding  how the DNT mechanism should work, the two sides also have what appear to be some intractable differences.

Late last week a group of nine U.S. Representatives penned their letter to the Federal Trade Commission, demanding information on how the agency has driven the process. The letter mentions “informal agency threats,” possibly a reference to comments by the FTC’s Chief Technologist Ed Felton and others who have offered unofficial guidance on the process. The missive appears to have been spurred in part by Capitol Hill lobbying efforts by ValueClick and 33 Across, as well as trade groups including the IAB and DAA.

Among the concerns laid down is inadequate representation by publishers and advertisers on the TPWG, which is driving the DNT standards process. “The companies and advocates that dominate the TPWG have limited practical experience with the complex trade-offs inherent in restricting the flow of data at the heart of the Internet’s success,” claim the Representatives.

The letter followed by one week another epistle to the FTC from privacy advocates, with opposing concerns. That letter said the working group’s consumer privacy contingent had made significant concessions on data collection and use, and asked the FTC to intervene on behalf of consumer data protection.

Here’s an excerpt from that letter:

“A website should not… be entitled to ignore a facially valid DNT signal merely because the browser is non-compliant. That approach punishes the user for her choice of browser. After all, even if DNT ‘on’ is the default, it may nevertheless be the user’s own choice –as when a user disables and then reenables DNT or if a user chooses the IE10 browser specifically for its privacy-enhancing settings. We urge the FTC to support users by backing our position, especially now that Microsoft has made the DNT setting an explicit choice within the setup flow for Windows 8.

Consumer privacy has suffered in the technical ‘arms race’ between privacy tools and industry tracking practices, and we support efforts to design a consensus approach in hopes of avoiding further undermining of consumer trust online.”

We reached out to the FTC for a statement on the lawmakers’ letter, but haven’t heard back yet. We’ll update this story when and if we do.

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