LIVE from DMA in DC: Does “Do Not Track” Still Matter?

A very spirited panel at today’s DMA in DC event was led by Saira Nayak, Director of Policy for TRUSTe, and tackled the “Do Not Track” issue which is heating up in Washington and around the globe.   In some ways, the term “Do Not Track” has been appropriated to represent many issues beyond the original consumer choice intent.   Here is some of what is going on, according to the panelists, and what it all means for the future of digital advertising.

Stu Ingis, Esq., Counsel, Digital Advertising Alliance (DAA) and Partner, Venable, LLP:   DMA and industry has had a “Do Not Track” standard for years in our guidelines.  In addition, more than a year ago, we launched the Digital Adverting Alliance (DAA) to give consumers notice and choice about how their data is used in advertising.  I think we’ve solved the problem, and the current legislative push is just a solution in search of a problem.  The DAA icon may be the most prominent real estate on the internet.  One million consumers have seen that icon and most people do not exercise the choice to stop receiving targeted advertising.  The industry stepped in, created a solution, and it’s keeping pace with the technology, which advances faster than the law can keep up.  Meanwhile, it’s been 18 months since DNT was introduced, and we’ve yet to see any guidelines on what DNT actually means.

Joseph Lorenzo Hall, Senior Staff Technology, Center for Democracy & Technology:   Humans are very comfortable creating environments where we moderate the information we give off.  Walls between bathroom stalls is a good example.  However, on the Internet, it’s hard to know and control what data we are putting out.  Cookies are pretty easy to understand – in comparison to other things like browser fingerprinting, on which there are no user controls.  First party cookies can be good.  But, go to dictionary.com and you get 300 cookies in a session and more than half are from sources three or 10 hops away and associated with the ad network.  Personally, I block everything that is not a first party cookie and delete them all at the end of every session.

DNT is a flag that says simply, “I’d appreciate if you didn’t track me.”   We meant the name to be an analogy to “do not call.”

I’m afraid of arms races. Very few people benefit other than arms dealers.  If it’s an arms race between users like me employing all these technological blockers and the third party advertisers, then it doesn’t seem like a fair fight.  But when you see the browser vendors like Microsoft and Mozilla coming in, it looks like a lot fairer of a fight.

So yes, DNT still matters and it is crucial that we come up with an agreed way to make it very clear the conditions under which we would all  honor a DNT signal when consumers choose to be anonymous.

Joseph Wender, Legislative Director, Office of Representative Ed Markey (D-MA) –  My boss is co-chair with Representative Joseph Barton (R-TX) of the bipartisan privacy caucus.  We believe that privacy is a fundamental right of Americans.   Technology has rapidly evolved, and Americans are starting to realize, “What is happening to my information?!”  Folks are starting to write and call our office saying that they don’t understand what is happening, how their data is being used and how it’s collected. They ask “Why are these ads coming to me?” People are particularly concerned about their sensitive information around health and financial – information that 30 years ago would have been under lock and key at the bank or doctor’s office. Now that info seems to be floating out there, and folks are concerned.

Political pressures have increased on lawmakers to do something on the privacy front.   Congress has a lot of different ideas.  Our caucus work is not just limited to legislation, but we also do oversight.  For example, we hosted a forum in the privacy caucus with data brokers last year to discuss the issues.

Saira Nayak, Director of Policy for TRUSTe:  We don’t have a national fundamental right to privacy, although many feel that it is implied in the Fourth Amendment, but we’d all agree that we have a national need and desire to protect the data.

Joseph Lorenzo Hall, Senior Staff Technology, Center for Democracy & Technology:  I see the work the Worldwide Web Coalition (W3C) (who are working on a technical solution to the DNT challenge) as a “fixer” – trying to take on discrete issues like what is a definition of a third party on the web or within a social network.  Even issues like that have huge implications not just for the big guys but also for businesses in the long tail.    It’s not just a technical solution, but a compliance piece, too. That is why we supported the Mozilla decision – this is a browser based solution to a very challenging problem.

Stu Ingis, Esq., Counsel, Digital Advertising Alliance (DA) and Partner, Venable, LLP:   I am very disappointed to hear that CD&T is supportive of the Mozilla decision (to remove third party cookie support in their new browser).  The advertising community is not going to sign up for a program that will be fundamentally bad for consumers  – and bad for competition and innovation.   No one has presented any proof to suggest that blocking cookies is going to do any good – it would cut off a large part of the long tail businesses, it would stop innovation and it would offer no benefit to consumers.  Consumers are not clamoring for this.  I talk to members of Congress all the time, and they are not getting calls. This is a fabricated thing being pushed by extreme viewpoints. We are pro-privacy, and DMA and DAA have done more to promote consumer privacy in the past decade than anyone.  As an industry and as regulators we have to be very careful before we endorse things that are not well thought through, or that would have devastating impact on something that consumers love: The Internet.

Joseph Wender, Legislative Director, Office of Representative Ed Markey (D-MA): “Stu is right that the best market is a competitive one. But there is also a lack of transparency in the practices of advertisers and marketers on the Internet. Part of our job in Congress is to do oversight and education of consumers and industry. There is a need for this industry to explain itself better to consumers, so they can understand the benefits as well as the risks and downsides. Consumers are not fully aware of both of them.

Stu Ingis, Esq., Counsel, Digital Advertising Alliance (DA) and Partner, Venable, LLP:   More transparency is very different that “just stop it.” We are looking to do better on transparency, we are trying our hardest.  Light and sunshine is a great disinfectant. Yet, transparent and prohibition are two very different things.

No one thinks twice about the ads that interrupt the football game.  Yet, now we are all getting upset over a situation where ads are surrounding content that consumers want to see. I don’t think any of the studies out there really reflect what consumers want.  I think a free competitive society is the best way to help consumers – free markets are compelled by their very nature to create experiences that consumers want to have.

Saira Nayak, Director of Policy for TRUSTe:  Will DNT event get us there? Will DNT provide that transparency and shine the light that is necessary or helpful?

Joseph Lorenzo Hall, Senior Staff Technology, Center for Democracy & Technology:  The value of DNT is disarming the arms race. If we don’t do this, you will have browsers out there with multiple standards and approaches. The reason we support the Mozilla move is that we want the DNT dialogue to continue and perhaps even evolve to a point where they don’t need that patch.   There is a feeding frenzy on consumer data.  We need to have a dialogue so that consumers can appreciate that ads benefit them.  We think that ads benefit consumers – and we’ve been very consistent about that benefit.    Browser vendors have very little recourse – they provide the direct interaction with the consumer.

Stu Ingis, Esq., Counsel, Digital Advertising Alliance (DA) and Partner, Venable, LLP:   Why do browser vendors get to determine the standard for the entire industry?   I would challenge the browser vendors to deliver those consumer complaints to all of us. The companies  we represent provide services to consumers.  They deal directly with consumers and never hear these concerns.

Joseph Lorenzo Hall, Senior Staff Technology, Center for Democracy & Technology:  There is an increasing number of middle experience providers in our digital lives – people like browser vendors who can ensure that only the data owner can use the data.   There are also new options for paid services that replace the only option of getting advertising.

Stu Ingis, Esq., Counsel, Digital Advertising Alliance (DA) and Partner, Venable, LLP:   Services that charge for a paid version without ads fail time and time again.  We know the answer to this debate – that relevant ads support valuable online experiences and are welcome by consumers.  But yet, here we are.  We continue to live under a false rubric that is this is a worthy debate and conversation!

Saira Nayak, Director of Policy for TRUSTe:  Are we putting forth a DNT standard that may impede industry’s ability to prevent harm?

Joseph Wender, Legislative Director, Office of Representative Ed Markey (D-MA):  Sometimes you can’t measure consumer benefit in quantifiable impact or real dollars. This is an inherent challenge of developing regulation.  There is an estimation that the harm is greater – that a young girl searching for diet pills is then receives advertising for weight loss.   When it comes to kids, it seems easier to determine that harm is done. A 30-year old is able to appreciate his decisions in ways that an 11 year old does not. There is a values question that you have to go through as a Congressman.

Stu Ingis, Esq., Counsel, Digital Advertising Alliance (DA) and Partner, Venable, LLP:   Both DAA and DMA support the Children’s Online Privacy Act, and the current legislation has protections for children. The challenge in the current legislation now extends that to teens.  We have to look at that.  In the adult world, our position has always been about transparency.  Let consumers make their choices. We agree on a lot, and we disagree sometimes, but overall we have a good dialogue with Congress and even with CD&T.

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