‘Do Not Track` Legislation Still on the Table in California, U.S. House

U.S. Senators John Kerry and John McCain came under fire from consumer advocacy groups for not including a Do Not Track universal opt-out provision in their privacy bill. However, lawmakers in the U.S House of Representatives and in the California legislature are already tackling the issue.

The 2011 Commercial Privacy Bill of Rights Act co-sponsored by Kerry, D-Mass., and McCain, R-Ariz., and introduced April 12, only required companies to provide consumers with an easily accessible method for opting out of information tracking on their sites. The Federal Trade Commission’s proposal for a Do Not Track mechanism last December recommended giving consumers a way to universally tell online marketers and companies to not track their online activities at all.

The FTC said Do Not Track should be implemented by the private sector, but did not specify whether the impetus to do so should come from the government or from the industry. Based on recent activity in the California State Senate, the push might come from the states.

California state Sen. Alan Lowenthal introduced a bill on April 4 to restrict online tracking. If passed, it would be the first Do-Not-Track law in the country. Debate is scheduled to begin on April 26.

"We will lead and provide stimulus to the rest of the nation," Lowenthal said. "It's much more difficult to get something like this through Washington."

The bill mirrors a piece of legislation currently circulating in the U.S. House of Representatives called the Do Not Track Me Online Act of 2011. Rep. Jackie Speier, also of California, introduced the proposal on Feb. 11.

Both bills apply to entities that collect or store certain types of user behavioral information, such as the Websites accessed, time of visits, the type of browser or device used to view the sites, and using geo-location to determine the physical location of the device used. Personal details, such as name, address, email address, location information and IP addresses, are also included.

“People have a right to surf the Web without Big Brother watching their every move and announcing it to the world,” Speier said in statement.  “The Internet marketplace has matured, and it is time for consumers’ protections to keep pace.”

Both bills require that businesses disclose what information is being collected, how it is used, and to whom it is given or sold. Businesses collecting data on less than 15,000 people would be exempt, unless the organization were in the business of monitoring, studying and analyzing individual behavior.

The industry is already moving toward policing itself, and government-enforced rules are “not a good idea,” Steve Minichini, president of interactive at media agency TargetCast, told eWEEK. While it is important to “double verify” how private data is being used, Minichini said online tracking ultimately helps consumers. The industry will “follow the money,” and honor consumer requests because they would lose business and partners otherwise, Minichini said. Blanket legislation is too restrictive and unnecessary.

The omission of DNT from the Kerry-McCain bill also doesn’t appear to be worrying FTC Chairman Jon Leibowitz. Do Not Track will be implemented even if there is no legislation requiring it, Leibowitz told Consumer Reports on April 13.

“Companies want to do the right thing, and stay on the right side of consumers,” Leibowitz said. 

Some recent industry movements seem to support Leibowitz’s statement. Apple added Do Not Track capabilities to its Safari browser as part of the beta of the next Mac OS X, code-named Lion, the Wall Street Journal has reported. Apple’s move follows Microsoft and Mozilla, which have already implemented this feature in their latest versions of Internet Explorer and Firefox. While Google Chrome hasn’t added the capability yet, there is a Chrome add-on “Keep My Opt Outs” that does the same thing.

“We’re happy to see that [Do Not Track] has resonated this much not just with the public and consumers, but with industry,” Leibowitz said.

Having the feature in the browser at this point is just a step forward, but people shouldn’t think that checking that option means they are no longer being tracked, according to Jonathan Nightingale, Mozilla’s director of Firefox development. The system would work only if the marketers honor people’s choices, and at this time, major ad networks haven’t come to an agreement on how to do so. Browser makers like Mozilla are implementing the feature in order to be part of that conversation with marketers, Nightingale said.

Reps. Cliff Stearns of Florida and Jim Matheson of Utah introduced on April 13 a broad privacy legislation similar to the Senate bill in the House of Representatives. The House bill requires firms to create privacy policies that tell consumers about the collection, sale and use of their data. There is no Do Not Track provision in this bill, either.