Do Not Track Hearing Takeaways

Organized by Sen. Rockefeller (D-W. Virginia), who has repeatedly pushed for a “Do Not Track” law, yesterday’s Senate Commerce Commerce Committee hearing  on Do Not Track (DNT) was billed as an opportunity for industry to provide senators with an update on how voluntary DNT standards were proceeding.  Joined by Senators Blumenthal, Heller, McCaskill, and Thune, Sen. Rockefeller engaged in a two hour discussion that touched on not only the state of the online economy and behavioral advertising, but also important consumer privacy concerns.  The hearing produced three key takeaways:

1)     Advertisers and Industry Must Be More Proactive

Advertising and industry groups need to be more proactive in encouraging the DNT process or risk the government imposing its own solution.  Sen. Rockefeller (D-W. Virginia) criticized industry for “deliberately dragging its feet” and “undermin[ing] the very essense of a meaningful Do-Not-Track standard.”

Part of the problem, as FPF’s Jules Polonetsky and Omer Tene have suggested previously, is that there remains wide debate surrounding the question of whether behavioral tracking is a net social good or an unnecessary evil.  Discussions surrounding the technical implementation of DNT “camouflage deep value judgments which have yet to be made,” the pair concludes.

This dilemma was on full display during the hearing.  Sen. Heller (R-Nevada) asked directly whether behavioral tracking was producing any sort of harm, and the panelists explained that this may be the most difficult question of all.  Determining whether tracking produces either quantitative or qualitative harm to consumer privacy is a huge challenge.  “Privacy is a highly subjective condition,” Adam Thierer of the Mercatus Center noted, explaining that behavior we find to be creepy may not be harmful in any real sense.

The Digital Advertising Alliance’s Lou ­Mastria suggested that the question should revolve around user choice, arguing that the DAA was already voluntarily providing a consumer opt-out mechanism largely in line with that Sen. Rockefeller has proposed.

Harvey Anderson, speaking for Mozilla, stated that the DNT debate has mistakenly focused on business revenue models.  Models, he claimed, that lack consumer transparency.  The solution he put forward was for Internet industries to emphasize developing and encouraging trust with consumers.

However, though the World Wide Web Consortium (W3C) provides the perfect forum to hash out technical standards, it is ill-positioned to make these types of privacy value judgments.  The inability of everyone to agree what behaviors are good or bad may be hamstringing the process.

2)     Senators Are Skeptical of the W3C 

Perhaps as a result, senators appear skeptical of the ability of the Word Wide Web Consortium (W3C) to adequately tackle the problem.  Acknowledging that Congress may be ill-equipped to handle complicated technical policy questions, Sen. McCaskill  (D-Missouri) questioned whether  a technical body such as the W3C was the proper forum to be making sweeping Internet policy decisions.  Justin Brookman noted that the W3C already includes all of the major players, and Harvey Anderson explained that the organization was better positioned than regulators or other entities to achieve a technically feasible agreement.

Sen.  Rockefeller remained skeptical.  “The WC3, W3C, whatever it  has no authority whatsoever,” he said, and none of its standards were legal enforceable.  Beyond that, he was worried about the group’s generally slow progress at developing a self-regulatory framework for DNT.

Theirer, a frequent critic of the process, defended the W3C, emphasizing that developing technical standards, let alone establishing Internet policy, is incredibly challenging work.

Peter Swire, a senior fellow at FPF and the co-chair of the W3C DNT standards process, wrote in advance of the hearing that failure to come to a negotiated standard threatens a “new digital arms race.”  Further, he warned that failure at the W3C would lead to a government imposed solution, and if yesterday’s hearing was any indication, this is an avenue several senators want to explore.

3)     There Is Some Enthusiasm to Explore Legislative or Regulatory Solutions

Indeed, Sen. Rockefeller appears eager to pursue a legislative response.  He has reintroduced his Do-Not-Track Online Act, but it is worth noting that the bill currently only has on co-sponsor:  Sen. Richard Blumenthal (D-Conn.). Thus, it is unclear how successful Sen. Rockefeller’s effort will be.  For his part, Sen. Blumenthal, who also sits on the committee, was left wondering what sort of action might be required by either Congress or the FTC to spur the DNT process along.

“If voluntary agreements are not forthcoming, is it time for a law?” Sen. Blumenthal (D-Conn.) asked.

While the panelists did not directly address this question, the general sentiment was that stakeholders were on a path to finding a solution without congressional involvement.  Justin Brookman from the Center for Democracy & Technology noted that part of the problem remains that the United States simply lacks any sort of comprehensive privacy law to provide a baseline.  DNT receives much attention, but it is hardly “the worst thing out there,” he suggested.

Nonetheless, even as panelists pushed for more time, all eyes will be on the W3C’s next meeting among all the major stakeholders on May 6.