Congress Asks If Do-Not-Track Will Deflate Ad Economy

Capitol-Hill

Expanding on the Federal Trade Commission's do-not-track proposal, consumer protection head David Vladeck told lawmakers on Thursday morning that a no-tracking mechanism could end the current "arms race" to circumvent consumers' privacy choices.

Testifying at a hearing of the House Subcommittee on Commerce, Trade and Consumer Protection, Vladeck said some companies currently do end-runs around consumer's attempts to avoid online tracking. His written testimony went into greater detail about how companies can use Flash cookies -- which are stored in a different location in browsers than HTTP cookies, and are therefore harder for users to delete -- to track people who believe they have opted out of online ad targeting.

An enforceable do-not-track mechanism, he said, could help prevent companies from thwarting users' decisions through technological measures. At the same time, although touting do-not-track, Vladeck reiterated that the FTC was not yet calling for new legislation.

But do-not-track legislation could be introduced even absent an FTC request. At least two politicians said on Thursday they supported laws mandating a uniform do-not-track mechanism that would allow people to easily opt out of all online data collection.

Rep. Ed Markey (D-Mass.), co-chair of the bipartisan privacy caucus, said at the hearing he will propose a new privacy law aimed at protecting children and including a do-not-track component -- even though the hearing did not otherwise address minors' privacy interests.

"For many kids today, the Internet is like online oxygen -- they can't live without it," said Markey, who authored the Children's Online Privacy and Protection Act in the House. "But kids growing up in this online environment also need protection from dangers that can lurk in cyberspace. Children should be playing 'Hide and Seek,' not 'Hide from the Creep.'"

In addition, Connecticut Attorney General Richard Blumenthal, recently elected to the Senate, urged Congress to "implement the closest possible Internet equivalent of the do-not-call list, enabling consumers to say a simple 'no' to snoopers."

Rep. Gene Green (D-Texas) asked Vladeck whether the FTC believes that an opt-out system can protect consumers' privacy. The FTC's do-not-track proposal would allow ad networks to continue to track users by default, but would require networks to honor the preferences of consumers who do a universal opt out.

Vladeck responded that the critical issue is whether consumers have understandable tools, not whether companies use an opt-in or opt-out approach. "We've seen both mechanisms used by marketers in ways that are confusing to consumers," Vladeck said. "What we're hoping to do here is find a simple, easy-to-use, easy-to-find tool, that consumers can use to express their choice."

A number of lawmakers who spoke at the hearing appeared noncommittal about do-not-track, with some specifically questioning whether such a mechanism would result in a decrease in online ad dollars.

Time Warner Cable executive vice president Joan Gillman, who argued against do-not-track, said she had no empirical research showing whether ad revenue would be lost, but added that new regulations could hinder the company from improving its service. "The risk one runs is that there are unintended consequences of a do-not-track policy, in that it prevents companies like ours from innovating," she said.

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