We have previously reported on the Federal Trade Commission’s December 2010 preliminary staff report, “Protecting Consumer Privacy In An Era of Rapid Change.”  With the February 18, 2011 extended deadline to comment on the report quickly approaching, the Berkeley Center for Law & Technology held a roundtable on Browser Privacy Mechanisms last week. 

Participants included spokespersons from the FTC, privacy groups such as the Center for Democracy & Technology and Electronic Frontier Foundation, representatives from Microsoft, Google, and Mozilla, and leading academics and technologists.

FTC Commissioner Julie Brill noted that although most of the buzz around the preliminary staff report has focused on Do Not Track, the report has three principle components—Privacy By Design, Choice, and Transparency.  She commented that although industry has been slow to deal with these issues in the past, the response this time appears to be much stronger and more focused.  As of the roundtable, the FTC already had received more than 200 comments and expects the Commission’s server to be tested by the volume of comments anticipated on the deadline. 

Brill also outlined the five components by which FTC will judge a choice mechanism offered to consumers (whether through a self-regulatory mechanism or congressional action).

• How easy is it to use the choice mechanism?
• How effective is it and is it enforceable?
• Is it universal—i.e., is there participation by the vast majority of the industry?
• Does it provide for opt-out or opt-in of collection of information, rather than just use?
• Are the choices persistent so that they will last (in contrast to cookies that may be deleted or may expire on a relatively short-term basis).  

In the context of these criteria, panelists discussed the merits of currently-existing Do-Not-Track mechanisms—namely, cookie-based, header-based, and blacklist approaches—as well as other  potential technical solutions. 

Although panelists debated the specific definition of “tracking,” there seemed to be consensus that agreeing upon some definition of what constitutes tracking is critical to move forward. 

Turning to enforcement, participants also highlighted the importance of securing a commitment from advertisers and ad networks that they will honor the choices made by consumers through Do Not Track and elsewhere.

Overall, the tone of the roundtable was cooperative and everyone, including the FTC, appeared eager to engage in constructive brainstorming and deliberation.  And although the roundtable dialogue generally focused on big picture issues surrounding browser privacy mechanisms, the comments submitted to FTC should contribute some interesting and important granularity to the discussion.