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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

FTC’s Role in “Do Not Track” Discussions Under Debate

Posted in Federal Trade Commission

Updated on October 1, 2012 to add information about Chairman Leibowitz’s response to the nine Representatives’ letter. 

As we previously noted, in March of this year the Federal Trade Commission called for the implementation of a Do Not Track (DNT) system that allows consumers to opt out of the collection of all online behavioral data other than data needed for certain limited purposes, such as preventing fraud.  Much of the debate over DNT has been taking place within the World Wide Web Consortium (W3C), which has been convening talks to develop a standard for what it means to honor a consumer’s DNT preference. 

According to media reports, advocacy groups are now asking the FTC to become more actively involved in the W3C discussions.  In a letter to FTC Chairman Jon Leibowitz, the Center for Digital Democracy, Consumer Watchdog, and the Electronic Frontier Foundation wrote, “The W3C talks have reached a point where a clear statement from the FTC will play a decisive role in reaching consensus.”  The organizations want the FTC to support a proposal that would permit the collection of analytics information only if the data cannot be linked to specific users or devices, as well as a proposal that websites should honor DNT irrespective of whether the DNT setting is turned on by default — an issue we blogged about here

Meanwhile, nine House members have reportedly written to the FTC to raise concerns about the agency’s role in the W3C process.  The lawmakers questioned whether the FTC and W3C have adequately considered DNT’s potential effect on third-party advertising networks and publishers.  The members also requested information about the agency’s authority to participate in the W3C discussions, studies the agency considered before advocating for DNT, and other information.  Rep. Mick Mulvaney (R-SC) today sent a separate letter to Chairman Leibowitz, asking for similar information and criticizing the FTC for “acting outside the scope of Congressional intent” by seeking to create government policy in an area reserved for Congress.

Edit:  Chairman Leibowitz responded to the Representatives’ letter by emphasizing that the FTC’s role in W3C “in no way usurps the legislative process or imposes a burden on industry” because any DNT standard adopted by the W3C would be self-regulatory and voluntary.  The nine House members’ letter is available here, and Chairman Leibowitz’s response is available here.

It is clear that the FTC and individual Commissioners are watching the W3C debate closely.  In a speech earlier this month, departing Commissioner J. Thomas Rosch expressed doubt about whether the W3C standard would be sufficiently user-friendly and whether it would be possible to have a workable DNT system in place by the end of the year.  Noting that stakeholders have proposed DNT exemptions for data collected for market research and product development, Commissioner Julie Brill encouraged the W3C participants to define these exemptions narrowly so that they do not become “exceptions that swallow the rule.”  She also suggested that data collected for these permitted uses should be anonymized or deleted after 30 days, and she invited industry stakeholders to weigh in on whether the 30-day period “is rational or not.”

In other DNT news, Google recently announced that the DNT privacy setting will be generally available in Google Chrome by year’s end.  Chrome is the last major browser to add the DNT header, which is already available in Microsoft’s Internet Explorer, Mozilla’s Firefox, and Apple’s Safari.  According to Mozilla, 11% of the people who use the desktop version of Firefox — and 18% of those who use Firefox on Android phones — have turned on Firefox’s Do Not Track feature.