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'Do not track' legislation could be Internet game changer

By Johns, Flaherty & Collins SC on Wednesday, April 13th 2011

When Rep. Jackie Speier (D-Calif.) introduced legislation this year that would establish a “Do Not Track List” for Internet marketers, countless consumers sighed, “It’s about time.” But a closer look raises questions not only about what would be included or exempted from the legislation but also how that may affect the inner workings and availability of online content.

Dubbed the "Do Not Track Me Online Act of 2011," the bill mimics Do Not Call legislation, and would enable the Federal Trade Commission to create regulations requiring online marketers to reveal what information they track and how it is used and offer an opt in/out setting. Violators then would be punishable by law.

The legislation followed an FTC report late in 2010 that urged the private sector to develop stronger online privacy controls, including a Do Not Track mechanism. And just last month, President Obama called for such mechanisms to be included in privacy bill of rights legislation.

The Do Not Track act would apply to any person engaged in interstate commerce that collects or stores online data. Government entities would be exempt, as would commercial entities that have information from fewer than 15,000 people, that collects information from or about fewer than 10,000 people during a 12-month period or that does not collect or store personal information. Businesses would still be allowed to store street and email addresses, phone numbers and other contact information.

It’s unclear how the bill, now in subcommittee reviews, would translate into practice. Some experts have speculated it may come in the form of a web browser feature where users can opt in or out. But with the multitude of ways that marketers collect data, it’s certain that one remedy won’t fit all and once one remedy is identified, marketers can just create a new method.

It’s the same with exempted parties. Marketers who collect data on more than 15,000 people can surely find ways to restructure their practices so as to qualify for exemption.

However it would be applied, the legislation would clearly limit marketers’ abilities to discern your likes and dislikes—a function that makes the Internet a worthwhile place for businesses to be and invest quality content.

Do Not Track legislation would affect Internet giants like Google, Facebook, YouTube, eBay and Amazon who now track preferences to provide a richer experience for users and target advertising more effectively, making their significant online investment more profitable. If Do Not Track legislation inhibits their profitability, what’s to stop them from charging for some services and information we now get for free? What’s to stop them from providing some of the deeper content we’ve become accustomed to?

While opponents argue that tracking for marketing purposes does not harm consumers, proponents of the bill contend there’s no guarantee information won’t be used for more dubious purposes. Imagine data cached somewhere indicating you’re a consumer of diabetic supplies getting into the hands of an insurer or a search of job openings (on your own time and on your own computer) is discovered by your employer.

At the very least, proponents argue, consumers should be informed about what information is collected and how it is used and given an option to opt in or out.

In the meantime, if you want to exact privacy remedies, you need not wait for legislation: simply disable cookies on your computer. Cookies are bits of information sent by a web server to store on a browser so it can remember specific information. They’re used for storing user IDs and passwords for easier login or for remembering what’s stored in an online shopping cart. Of course, they’re also used to store information about the types of information or products that interest you for more targeted advertising later.

You can also use the new DNT (Do Not Track) feature on Firefox 4 and Internet Explorer 9 browsers or use anti-tracking plug-ins such as AdBlock Plus or Ghostery.

If you value online privacy, that may be a good idea anyway. Even if the legislation passes, it doesn’t call for any centralized Do Not Track list, and enforcement could prove to be as intricate and tangled as the Web itself.

For more information on Internet privacy, contact Cheryl Gill at 608-784-5678.

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