On March 26, 2012, the Federal Trade Commission (FTC) issued a privacy report (“Report”) respecting Internet usage. It proposed best practices for protecting American consumers and giving them more control over the personal data collected on the Internet.

Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers, An FTC Report (Mar. 26, 2012) available at http://www.ftc.gov/os/2012/03/120326privacyreport.pdf.

Among the many challenges to consumer privacy that the FTC addressed, it mentioned the issue of tracking consumers’ online activity.  In what the FTC sees as one way to remedy this problem, it called for “implementation of a universal, one-stop choice mechanism for online behavioral tracking, often referred to as Do Not Track.” Id. at 52.  The Do Not Track mechanism would provide consumers with the ability to control tracking of their online activities.

To be successful, the industry has to step in to implement this improved choice mechanism and allow consumers the option of opting out of behavioral tracking. The FTC believes that any effective Do Not Track system should include the following five principles:

  • First, a Do Not Track system should be implemented universally to cover all parties that would track consumers.
  • Second, the choice mechanism should be easy to find, easy to understand, and easy to use.
  • Third, any choices offered should be persistent and should not be overridden if, for example, consumers clear their cookies or update their browsers.
  • Fourth, a Do Not Track system should be comprehensive, effective, and enforceable. It should opt consumers out of behavioral tracking through any means and not permit technical loopholes.
  • Finally, an effective Do Not Track system should go beyond simply opting consumers out of receiving targeted advertisements; it should opt them out of collection of behavioral data for all purposes other than those that would be consistent with the context of the interaction (e.g., preventing click-fraud or collecting de-identified data for analytics purposes).

Id. at 53; format not in original.

The Report acknowledged that web browser companies have made efforts to give consumers choice in how they are tracked online.  For example, “the [Digital Advertising Alliance] DAA has developed its own icon-based tool and has committed to honor the browser tools; and the [World Wide Web Consortium] W3C has made substantial progress in creating an international standard for Do Not Track.” Id. at 72.

Although the current self-regulation and browser mechanisms for implementing Do Not Track solutions are improving, the work is not done. In the report’s conclusion, the FTC “commends recent industry efforts to improve consumer control over behavioral tracking” Id. at 53, the FTC looks forward to continuing to work with businesses to “complete implementation of an easy-to use, persistent, and effective Do Not Track system.” Id. at 72.    

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