FTC Endorses "Do Not Track" Information Control Regime for the Internet

by Adam Thierer, Technology Liberation Front
TechLiberation
Dec. 01, 2010

This morning, the Federal Trade Commission (FTC) released its eagerly-awaited Preliminary FTC Staff Report on Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers. As expected, the agency has generally endorsed an expanded regulatory regime to govern online data collection and advertising efforts in the name of protecting consumer privacy. More specifically, the agency endorsed a so-called “Do Not Track” mechanism that would supposedly help consumers block unwanted data collection or advertising. Here’s how the agency describes it:

Such a universal mechanism could be accomplished by legislation or potentially through robust, enforceable self-regulation. The most practical method of providing uniform choice for online behavioral advertising would likely involve placing a setting similar to a persistent cookie on a consumer's browser and conveying that setting to sites that the browser visits, to signal whether or not the consumer wants to be tracked or receive targeted advertisements. To be effective, there must be an enforceable requirement that sites honor those choices. (p. 66)

I’m sure we’ll have plenty more to say here about the issue in coming weeks and months (comments on the FTC report are due by Jan. 31), but we’ve already commented on this proposal here before. See 1, 2, 3. To briefly summarize a few of those concerns:

Ironically, depending on how it’s implemented, a "Do Not Track" mechanism could potentially require individuals to surrender more personal information about themselves to companies or the government for purposes of authentication and enforcement of the rule.
It would also require a re-architecting of the Internet and the potential regulation of every web browser to ensure compliance. This will give the FTC and other lawmakers far greater control over the Internet’s architecture.
For that reason, one can easily imagine would-be Net censors using the “Do Not Track” mechanism being used as a blueprint to regulate other types of online speech.
One also wonders if mandatory browser controls opens up a potential new back-door for government surveillance snoops to exploit.
Most importantly, if “Do Not Track” really did work as billed, it could fundamentally upend the unwritten quid pro quo that governs online content and services: Consumers get lots of “free” sites, services, and content, but only if we generally agree to trade some data about ourselves and have ads served up. After all, as we’ve noted many times before here, there is no free lunch. The cornucopia of seemingly free services and content at our fingertips didn’t just fall to Earth like manna from heaven. Data collection and advertising made that all happen. If we undercut this goose that lays the Internet’s golden eggs, consumers could see charges on many services that they currently pay little to nothing for. Do you want to pay $20 a month for your favorite social networking site? A dime per search on your preferred search engine? Well, that’s the future that could await us if we continue down this regulatory road.

Again, more analysis to come.