FTC's Rosch: 'Do Not Track' Needs More Vetting

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Republican Federal Trade Commissioner J. Thomas Rosch says it would be irresponsible for the commission to promote a "Do Not Track" regime without doing more due diligence on the mechanism and its consequences.

He took issue with some of the prepared testimony of Democratic Commissioner Julie Brill, one of the witnesses for Wednesday's (June 29) Senate Commerce Committee hearing on privacy and data security.

While not a witness himself, Rosch submitted a dissenting statement echoing his concerns with the FTC's December draft report on privacy that recommended implementation of a Do Not Track regime based on five principles, which are that it be universal; that it should be easy to find and use; that the choice should be "persistent," as in not disappearing when cookies are cleared or browsers updated; that it should be comprehensive, effective and enforceable; and that it cover not just targeted advertising but other behavioral data other than for product fulfillment (information that eases online shopping and shipping, for example) or other common practices.

Brill does make the point in her testimony that the government must be careful not to damage the ad-supported Internet ecosystem. "[A] Do Not Track system should not undermine the benefits that online behavioral advertising has to offer by funding online content and services and providing personalized advertisements that many consumers value," she said. "For this reason, any Do Not Track mechanism should be flexible. For example, it should allow companies to explain the benefits of tracking and to take the opportunity to convince consumers not to opt out of tracking. Further, a Do Not Track system could include an option that enables consumers to control the types of advertising they want to receive and the types of data they are willing to have collected about them, in addition to providing the option to opt out completely."

But Rosch said the problem is that neither the FTC nor Congress know enough about how tracking works to know how to achieve those five or even whether they are achievable.

"The promulgation of five attributes, standing alone, untethered to actual business practices and consumer preferences, and not evaluated in light of their impact upon innovation or the Internet economy, is irresponsible," he said.

He also said it is premature to endorse any Do Not Track mechanism. Brill's testimony points to Mozilla, for one, and its mobile browser-based Do Not Track mechanism, and points out that Microsoft and Apple are also developing Do Not Track mechanisms.

Rosch said he is not suggesting that Do Not Track is infeasible, only that the FTC needs collect more evidence of what kind of tracking is actually occurring,

He suggests that the commission should questions ad network executives under oath to determine what kinds of information practices are common, similar to questionnaires food and alcohol advertisers must respond to, to give consumers a more complete list from which to pick advertising nets they will allow to track them

He concedes that would mean additional reporting burdens for those ad networks, but says that would be preferable to "acting blindly."

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