FTC Urged to Establish 'Do Not Track' List

Q Boyer
WASHINGTON — Both before and during a two-day town hall meeting conducted by the Federal Trade Commission last week, privacy groups lobbied the FTC to adopt a variety of new consumer protections in relation to the “behavioral advertising sector.”

In the context that it was used by the privacy advocates in their communications with the FTC, “behavioral advertising” refers to the practice of tracking consumer surfing, viewing and purchasing habits and targeting ads to them based on the data collected. In many instances, this advertising involves adware that pops console-based advertisements for products relating to a key term that the end-user types into a search box, or based on the websites that the end-user visits.

In a letter signed by nine privacy groups and sent to FTC secretary Donald S. Clark, the privacy advocates asserted that the “online tracking and targeting of consumers –– both in its current form and as it may develop in the future –– needs to be limited so that consumers can exercise meaningful, granular preferences based on timely and contextual disclosures that are understandable on whichever devices consumers choose to use.”

The letter called on the FTC to establish a national Do Not Track list similar to the Do Not Call list already in existence to prevent unsolicited sales-oriented phone calls to consumers, to prevent companies from collecting data on users who register on the national list.

Pam Dixon, executive director of the World Privacy Forum, argued that an opt-out list maintained by the advertising industry itself would not be sufficient — the list should be maintained and policed by the FTC, Dixon said.

“If you look back at the Do Not Call list, it was at one time managed by industry,” Dixon said. “But it didn’t gain widespread acceptance until the FTC took it over. The industry has had seven years to prove they can manage online opt-outs. It is time to move toward something structured like the Do Not Call list to address the problems we are seeing, and have now seen for seven years.”

The Do Not Track list was not the only recommendation that the privacy groups made to the FTC. The groups pushed for the FTC to adopt a definition of “personally identifiable information” that has been updated to “reflect the realities of today’s Internet;” to require the industry to provide more complete disclosure to consumers about behavioral tracking; to ensure that consumer privacy information is made available to all users, including “those who have visual, hearing, or other disabilities; independent auditing of those engaged in behavioral tracking to ensure compliance with privacy standards; to provide consumers with access to personally identifiable information collected about them by companies who use behavioral tracking; to place limitations on the manner of personally identifiable data that can be collected and to establish a national Online Consumer Protection Advisory Committee.

The letter was signed by representatives of the Center for Democracy and Technology, Consumer Action, the Consumer Federation of America, the Electronic Frontier Foundation, Privacy Activism, Public Information Research, the Privacy Journal, Privacy Rights Clearinghouse and the World Privacy Forum.

If adopted, the suggestions could lead to new FTC guidelines that would affect the practices of adult advertisers — but not necessarily in a bad way, according to one expert on adult website traffic.

Scott Rabinowitz, CEO of the traffic brokerage TrafficDude , told XBIZ that he agreed with several of the privacy groups’ recommendations, but hoped that in their pursuit of greater privacy protection for consumers the FTC does not make it impossible for legitimate behavioral advertisers to continue to offer targeted advertising that is helpful to consumers.

“Don’t throw behavioral advertising away — make it evolve,” Rabinowitz said. “I think the most important question is how do you define ‘personally identifiable information’? There needs to be common criteria and a clear definition.”

Rabinowitz said that he concurred with the privacy groups that industry self-regulation with respect to behavioral advertising and tracking has largely failed, thus far.

“As long as you get consent from the end-user, there is nothing illegal about installing communications software on their computer,” Rabinowitz said. “Sadly, there are a lot of people who think ‘If the money is there, and it isn’t technically illegal, why not do it?’”

Rabinowitz said that his company does not knowingly broker traffic from sources that generate traffic from adware, even if those sources technically are adhering to the law, because he believes that even legitimate adware often isn’t something that customers want — even if they have consented to downloading it.

“I don’t believe that many consumers really understand what they are saying ‘yes’ to when they click ‘yes’ on those download disclosures,” Rabinowitz said, noting that many adware distributors bury the details of how their systems operate in complicated and contorted end user license agreements.

Rabinowitz said that the power to curb adware distribution and to rein in irresponsible behavioral advertising techniques is there for traffic purchasers — if only they are willing to exert that power, and sacrifice revenue from certain traffic sources.

“Regardless of what the law says, or doesn’t say, it is entirely reasonable for traffic networks, affiliate programs and anybody else who does have the ability to set their own standards to do so, and to say ‘We don’t want this traffic,’” Rabinowitz said. “Unfortunately not many do that.”