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US and EU Taking Sides Over Do Not Track

Guest Contributor

The W3C Tracking Protection Working Group was in Seattle last week to continue discussion around how Do Not Track should be implemented. Governments are starting to pay serious attention to the direction the group is taking with regard to recommendations for the default state of Do Not Track in web browsing software.

As you may recall, Microsoft announced plans to turn on Do Not Track by default in the Windows 8 version of Internet Explorer. Privacy advocates are proclaiming this a win, but it goes against the planned cooperation between the Digital Advertising Alliance (DAA) and the Federal Trade Commission. DAA member companies had agreed to honor Do Not Track if consumers were allowed to choose their browser setting, rather than being forced to opt-in.

US Government Divided On DNT Support

On 19 June 2012, the Congressional Bi-Partisan Privacy Caucus issued a statement encouraging the W3C Tracking Protection working group to endorse Microsoft’s decision. This bi-partisan group, co-chaired by Edward J. Markey and Joe Barton, goes even further in suggesting Do Not Track be extended to non-behaviorally targeted advertising.

The following day, FTC Commissioner, J. Thomas Rosch, made a point of disagreeing with the Privacy Caucus. Rosch correctly points out that Microsoft’s default setting means Microsoft, not consumers, will be exercising choice over whether or not Do Not Track is on by default. While the letter from the FTC Commissioner was brief, it’s clear he understands that DNT may fall apart if consumer choice is eliminated by what remains one of the biggest players in browser software.

EU Shows Support For Microsoft

In an interesting turn of events, the European Union appears to be supporting Microsoft’s stance on Do Not Track. This is the same EU that spent nearly a decade accusing Microsoft of abusing the market dominance of Internet Explorer.

In a letter to the World Wide Web Consortium Tracking Protection Working Group, the Robert Madelin of the EU stated, “…it is not the Commission’s understanding that user agents’ factory or default setting necessarily determine or distort owner choice. The specification need not therefore seek to determine the factory setting and should not do so, because to intervene on this point could distort the market.”

Apparently being the biggest browser on the block is only a bad thing until the government’s interests are aligned with corporate strategy.

What Does This Mean For Do Not Track?

We are still a long way from seeing how Do Not Track changes advertising, if it changes anything. It’s very possible Microsoft’s aggressive stance on default settings may result in the initiative heading back to the drawing board. One thing I haven’t seen anyone discuss is how companies like Google and Facebook will respond to the self-policing nature of DNT. So for instance, if you are signed into your Facebook or Google account, the ToS for using the service likely supersedes a specific browser setting that wasn’t involved in the terms you agreed to when you signed up.

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