The Federal Communication Commission's decision not to require Websites to honor "do not track" browser settings has not deterred Consumer Watchdog's plans to get some sort of federal protection against Web user tracking.
The FCC announced its decision on Nov 6, saying that even though its reclassification of the Internet allowed it to treat Internet communications services in a manner similar to phone companies, it does not intend to apply some telephone privacy regulations to the Internet.
The dismissal of the Consumer Watchdog comes only about a month before the first cases challenging the FCC's reclassification of the Internet are to be heard in court starting on Dec. 4. According to Consumer Watchdog's Privacy Project Director John M. Simpson, the organization has a month to decide whether to appeal the FCC's decision, but he indicated that he's leaning that way now.
In its dismissal, the FCC said that while it had decided to reclassify broadband, "The Commission has been unequivocal in declaring that it has no intent to regulate edge providers." The Websites that Consumer Watchdog is seeking relief from are considered by the FCC to be edge service providers, and the agency has said that it is only seeking to regulate communications services.
The explanation for the dismissal also said that the FCC is not "regulating the Internet, per se, or any Internet applications or content." Instead, the FCC said that it was regulating "only the transmission component of Internet access service."
However, the FCC also said in its explanation that because the reclassification does allow it to create regulations that protect privacy, that this was an area for future rulemaking. As you might expect, Simpson doesn't agree. "We think that edge providers are information services and you can regulate them" under section 706 of the communications act, Simpson said.
The regulation of user privacy on the Internet, especially when it comes to Websites, is very much a gray area. So far, the only agency that has actually addressed the "do not track" issue in regard to Websites and browser settings has been the Federal Trade Commission. The FTC took a position encouraging the use of the "do not track" function, but so far has not taken action on it.
However, the FTC does administer the "do not call" list, and it's able to take action against companies that violate the limits of that list. Perhaps the authority for the "do not call" list could be expanded to include "do not track?"
Right now, that's unclear. To some extent, it would be up to the FTC whether it wanted to push the envelope that far.