Privacy Law

Some Advertisers Say Their Compliance with Computer Browser Do-Not-Track Feature Is Optional

Setting up a possible showdown between advertisers and the government agencies that are supposed to protect consumer privacy, three advertiser trade groups announced this week that they don’t support the do-not-track feature built into new Internet browsers manufactured by Microsoft, and said some companies might even ignore it.

On Tuesday the Digital Advertising Alliance suggested that its members could simply ignore the Internet Explorer privacy flag, according to Fox News and a lengthy The Not-So Private Parts post by Kashmir Hill.

In a written statement provided to the network, the trade group, which has some 5,000 companies as members, said:

“The DAA does not require companies to honor DNT signals fixed by the browser manufacturers and set by them in browsers. A ‘default on’ do-not-track mechanism offers consumers and businesses inconsistencies and confusion instead of comfort and security.”

The Interactive Advertising Bureau subsequently said it supports the DAA’s position on do-not-track, the Fox article recounts. And in an open letter last week to the CEO of Microsoft, the Association of National Advertisers told Steve Ballmer the default do-not-track setting would “undermine American innovation and leadership.”

The Hill’s Hillicon Valley blog reports that this advertiser position has drawn a blast from two congressmen who chair the Bipartisan Privacy Caucus.

“If consumers want to be tracked online, they should have to opt in to be tracked instead of the other way around,” U.S. Reps. Ed Markey, D-Mass., and Joe Barton, R-Texas, said in a written statement.

Meanwhile, a European Union official plans to warn in a speech Thursday that time is running out to enact a regulatory framework that will prevent computer users from having virtually every click they make incorporated in third-party data, the Associated Press reports. A Reuters article provides more details.

Even assuming that the do-not-track feature incorporated in Microsoft’s new browser means what it says and otherwise could get the job done, Hill writes at The Not-So Private Parts, the industry opposition to Internet Explorer’s default do-not-track setting could, ironically, effectively disable it.

The do-not-track feature lacks legal strength, Hill continues, because the Federal Trade Commission has indicated it would rather let “stakeholders” figure out a solution to this Internet privacy issue rather than taking enforcement action. “So at this point,” she writes, the do-not-track feature “is kind of like a car’s turning signal. Someone might flip on their right blinker to let you know they want to change lanes, but you aren’t required by law to let them over.”

This scenario shows, she continues, “why DNT might need actual legal oomph behind it.”

An Electronic Frontier Foundation page explains how consumers can turn on the do-not-track feature of various browsers.

Related coverage: “It Isn’t Necessarily Big Brother, But Somebody Is Potentially Watching, Virtually All the Time” “Lawyer Sues Facebook, Says Tracking Cookie Violates Wiretap Laws, Seeks Class Action Status” “Google Fined Record $22.5M by FTC re Claimed Safari Privacy Violations on Macs, iPhones and iPads” “7 Retailers Settle with FTC, Agree to Stop Spying on Up to 400,000 Computer Rental Customers”

We welcome your comments, but please adhere to our comment policy and the ABA Code of Conduct.

Commenting is not available in this channel entry.