The Digital Advertising Alliance (DAA), an online industry group that has a
set of self-regulatory standards for behavioral advertising, announced Oct. 9
that it will not recognize or support for enforcement purposes the do-not-track
setting on version 10 of the Microsoft Internet Explorer browser.
The announcement was not unexpected given the recent history of Microsoft's
do-not-track efforts. The new IE10 browser will be provided to consumers with
the do-not-track feature turned on as a default setting, according to Microsoft.
The May announcement of the new browser plan put Microsoft at odds with the
online advertising industry (11 PVLR 1068, 7/2/12).
The DAA, a consortium of leading advertising industry groups, including the
Association of National Advertisers, the Direct Marketing Association, and the
Interactive Advertising Bureau, said that it will not sanction nor penalize
advertising firms for ignoring this type of default setting.
“Allowing browser manufacturers to determine the kinds of information users
receive could negatively impact the vast consumer benefits and Internet
experiences delivered by DAA participants and millions of other Web sites that
consumers value,” the group said in a statement issued by the DAA.
Reps. Joe Barton (R-Texas) and Edward Markey (D-Mass.) issued a joint
statement Oct. 10 that sided with Microsoft and accused the DAA of “putting
profits over privacy.”
“If consumers want to be tracked online, they should have to opt-in to be
tracked, instead of the other way around,” said the lawmakers, who sit on the
House Energy and Commerce Committee and serve as co-chairmen of the bipartisan
House Privacy Caucus.
The DAA and Microsoft are key players in an industry effort to develop
do-not-track standards for the internet (11 PVLR 1103, 7/9/12). The project,
which is being facilitated by the World Wide Web Consortium (W3C), an
international organization that develops internet standards, is designed to make
it easier for consumers to avoid having their online activities followed by
companies. A draft W3C proposal would allow consumers to make do-not-track
choices through their web-browser settings.
The web advertising industry generally prefers an opt-out, rather than
opt-in, do-not-track standard.
Another key sticking point has been whether do-not-track should apply to data
collection as well as use.
The White House's online consumer privacy white
paper supports no-track options for consumers (11 PVLR 355, 2/27/12). The
Federal Trade Commission also issued a consumer privacy final report
calling for the online industry to adopt measures to implement a do-not-track
system (11 PVLR 590, 4/2/12).
Despite such challenges, Federal Trade Commission Chairman Jon Leibowitz has
been pushing for completion of an industry do-not-track framework by the end of
the year (11 PVLR 1487, 10/8/12).
The W3C is working to facilitate an agreement. The latest round of
deliberations took place during an Oct. 3-5 meeting in Amsterdam.
“I'm not sure that the process will be completed by the end of the year, but
it's possible,” Justin Brookman, a key member of the W3C Tracking Protection
Working Group, told BNA Oct. 10.
As a result of the recent meeting in Amsterdam, the working group now has a
“path toward resolution,” according to Brookman, who also serves as consumer
privacy director at the Center for Democracy and Technology, a Washington-based
technology policy group.
“Where there is disagreement, the chairs will propose two or more texts to
the group, and members will object to language they disagree with,” he added.
“The chairs will then decide, based on the logical strength of the
The rejection by online advertisers of a browser-based mechanism to control
tracking of consumers' web use may have implications outside the United
In the European Union, the so-called “EU Cookie Directive”--the 2009 amended
version of the e-Privacy Directive (2009/136/EC)--requires,
among other things, user consent for the placement of cookies on a computer.
The Article 29 Working Party of representatives of data protection
authorities in the 27 EU member states has taken a hard line on the need for
informed consent, but has said that a robust browser-based mechanism to allow
users to decline cookies that track their web surfing habits may be an
acceptable solution (10 PVLR 1052, 7/25/11).
Any do-not-track (DNT) standard adopted by the online behavioral advertising
industry “should not let websites 'second-guess' or disregard user choices,” EU
Commissioner for the Digital Agenda and European Commission Vice-President
Neelie Kroes said in an Oct. 11 speech at the Centre for
European Policy Studies in Brussels. “Recently, there were reports about a
popular web server introducing a feature that amounted to overriding the DNT
signal; in effect, ignoring users' wishes. I find that troubling, and
undesirable,” Kroes said.
Kroes congratulated the online behavioral advertising industry in Europe for
making progress in its self-regulatory efforts, but reiterated the need for
specific consent to placement of cookies on user's computers as required by the
amended EU e-Privacy Directive (2009/136/EC).
While the work of browser firms to include forms of DNT is a positive
development, Kroes said that she is “increasingly concerned” about delays in the
work of the World Wide Web Consortium (W3C) to conclude its work towards
developing a universal set of no-track standards. She said that “watering down
of the standard” is her top concern.
“I am not naive. The way the discussion is going right now shows that the DNT
standard, on its own, will not guarantee satisfying legal cookie requirements.
Not least because the emerging consensus appears to exclude first-party cookies
from the scope,” Kroes said. Kroes added that she is confident the U.S. Federal
Trade Commission agrees with her concerns. Full text of Kroes' prepared remarks
are available at http://op.bna.com/pl.nsf/r?Open=dapn-8yzj84.
In June, the Art. 29 Party issued its latest opinion
on the issue (11 PVLR 971, 6/18/12). The group reiterated that while some
cookies, such as social plug-in tracking cookies and third party advertising
cookies, would require specific consent.
The Art. 29 Party has also rejected
efforts in Europe by online behavioral advertising industry groups there similar
to the DAA to promote a self-regulatory best practices code and icon-driven
opt-out system (10 PVLR 1843, 12/19/11).
For its part, the European Commission has said that a do-not-track setting
need not be the default setting for a browser and has told
the W3C that users should be informed of the consequences of choosing a setting
that rejects cookies (11 PVLR 1080, 7/2/12).
By Alexei Alexis and Donald G. Aplin