Antitrust Law Daily Wrap Up, ADVERTISING NEWS: Rockefeller Blasts Ad Industry for Failing to Act on Do-Not-Track Promises, (Apr 25, 2013)

By Brian Hammond, TR Daily

Sen. John D. (Jay) Rockefeller IV (D., W.Va.) yesterday pressed the advertising industry on its failure to live up to promises to implement do-not-track systems and suggested that legislation likely will be necessary because of the failure of self-regulatory efforts.

During a hearing, Sen. Rockefeller, chairman of the Commerce, Science, and Transportation Committee, recalled that in February 2012, the Digital Advertising Alliance "pledged that the online advertising industry would honor Do-Not-Track requests made by consumers. That commitment was supposed to happen by the end of last year, 2012. What that was supposed to mean was that when consumers made it clear they did not want advertisers to collect information about their Internet activities, the advertisers would respect their wishes."

"It is now April 2013, and consumers are still waiting for these Do-Not-Track standards," Sen. Rockefeller added. "Advertisers are continuing to ignore Do-Not-Track headers and consumers’ requests for privacy. I have long expressed skepticism about the ability—or willingness—of companies to regulate themselves on behalf of consumers when it affects their bottom line"

"I believe advertisers are dragging their feet … and I believe they are doing it purposely," Sen. Rockefeller said. "Promises have been broken. …What exactly is the hold up? Can you come to the table" at the World Wide Web Consortium, where do-not-track standards have been in development, and "make good on your word?"

Luigi Mastria, managing director of the Digital Advertising Alliance, tried to turn the tables and blame browser makers, saying they had broken promises to make it easier for consumers to decide not to be tracked.

"We sit here today ready to sit and work through the agreement we made with the White House," Mr. Mastria said. "Consumers should make that choice. We wholeheartedly agree. What is happening with Microsoft and Mozilla is that the browsers are making that choice. User choice is not being satisfied and that's something that we deliver on."

Harvey Anderson, senior vice president-business and legal affairs and general counsel at the Mozilla Foundation, called "specious" Mr. Mastria’s claim that they "can’t implement do not track because Firefox said they were going to explore third-party cookie blocking." Advertisers already are "not responding to do-not-track requests" at the direction of the DAA, Mr. Anderson said.

Justin Brookman, director of the Center for Democracy and Technology’s Project on Consumer Privacy, said the do-not-track settings in Google, Inc.’s Chrome browser "answer everything [advertisers] could possibly want," but the DAA still objects.

Sen. John Thune (R., S.D.) asked panelists if a multi-stakeholder process, whether the ongoing W3C process or something else, would be a "better way to reason a solution than a regulatory approach."

Mr. Brookman suggested that a basic law, with a "safe harbor" enabling compliance through a self-regulatory code, would be a "good way to get people into the room to agree to reasonable standards. Without a baseline saying you have to protect users’ privacy, there’s not enough reason to get into the room."

Mr. Mastria said the DAA’s voluntary program is "far superior, much more nimble, than any regulatory mandate," adding that new principles will be coming soon on data collection in the mobile environment.

Sen. Richard Blumenthal (D., Conn.) urged parties to commit to implementing the do-not-track agreement promised in 2012. "We can commit to you that we are working on it," Mr. Mastria said. "To put a specific date on it would not be fair."

Sen. Blumenthal asked if there was "anything the FCC or FTC can do" to help the process. Mr. Mastria said they should stop the "two browsers that are contravening that agreement right now."

News: Advertising Privacy