A Do-Not-Track Dilemma: DNT ~= Do Not Advertise

By Chris Hoofnagle

Posted on February 10, 2011

At Wednesday's browser privacy roundtable in Berkeley, Professor Peter Swire highlighted how the framing of Do-Not-Track (DNT) was brilliant: it put tracking companies on the defensive and at the same time led consumers to envision the Federal Trade Commission's Do-Not-Call Registry. Do-Not-Call, created by President Bush at a Rose Garden signing event, was probably the biggest consumer intervention promoting privacy of the decade. And it was successful--the FTC has shown that if you sign up, you will experience a significant decrease in sales calls.

Sales calls--that's the key. Politicians and non-profits can still call you. Consumers do not always understand this nuance, and some become angry and conclude that Do-Not-Call was a failure. This objection, fanned by partisans of direct marketers, was a serious threat to Do-Not-Call. If a consensus had emerged that it was ineffective, the FTC's reputation could suffer, and the registry itself could become vulnerable to legal challenges. The key to Do-Not-Track is the meaning of "track."

A weak version of "track" is proposed by the various self-regulatory groups--they only want DNT to apply to data used for the purpose of delivering targeted advertising. This version is weak because it would change very little--third parties would still be able to...track you...so long as the data are used for other purposes, such as analytics. If the weak version were to be adopted, DNT would be closer to "Track But Do Not Target."

A stronger version of "track" was articulated by FTC Commissioner Brill, who said that a focus on collection--not just use--is central to the agency's consideration of effective consumer privacy mechanisms. Under the strong version, consumers should be able to control the very collection of data for marketing purposes. Consumer advocates would probably prefer an even stronger standard--DNT should really mean "do not track me for any purpose unrelated to fulfilling a transaction I initiate."

But in the end, whatever version is adopted, it might not matter to consumers. If consumers mistakenly believe that DNT = "Do Not Advertise," it could be very bad for the FTC and privacy advocates. Unlike the Do-Not-Call Registry, which silenced the phone, DNT will not eliminate ads from the internet. Consumers will see ads everywhere, and they may even be well targeted, because they will be based upon location, contextual placement, and random luck.

Unless this nuance is more clearly explained to the public, consumers may judge DNT more harshly than its most vigorous industry critics