Rockefeller proposes a do-not-track mechanism

Privacy advocates inside and outside government have been talking for months about the possibility of a universal "do not track" option to protect Internet users from unwanted data gathering.  Today, Sen. Jay Rockefeller, leaped into the fray, introducing legislation that would require the Federal Trade Commission to establish just such a mechanism within a year of a new law's enactment.

Public anxiety about data collection has been on the rise lately, thanks to the steady stream of news about massive security breaches (Sony is just the latest) and to the recent firestorm over mobile-device software capable of tracking the whereabouts of anyone carrying an iPhone or other on-the-grid gadgetry.

The West Virginia Democrat's announcement drew directly on the news:

“Recent reports of privacy invasions have made it imperative that we do more to put consumers in the driver’s seat when it comes to their personal information,” said Rockefeller. “I believe consumers have a right to decide whether their information can be collected and used online. This bill offers a simple, straightforward way for people to stop companies from tracking their movements online.”

It's not clear what the bill's chances of passage are, to put it politely. Industry opposition has been mobilized since last fall, when the FTC floated the idea of requiring companies to abide by a universal "do not track" request from a consumer, perhaps similar to the national "Do Not Call" registry that has for years provided a measure of relief from unwanted telemarketing calls. (I wrote here about the debate.)

Many businesses - including those in the newspaper industry - felt harmed by the do-not-call legislation, which hampered a traditional tool for acquiring new customers and reconnecting with old ones. But telemarketing is a stone-age tool compared with behaviorally targeted online marketing, which enables companies to deliver ads to consumers whose profiles predict a high level of interest in a product or service. Online bidding for such ads reflects their high value, as does the impressive array of companies and industry groups that lined up recently against a California anti-tracking proposal, including Google, Facebook, American Express, the wireless-phone industry, and various insurance companies.

Do some consumers welcome behaviorally targeted ads? Undoubtedly so, especially if they don't worry about the implications of online profiles that, while ostensibly anonymous, can reflect what you buy, what you read, and everything else you do or view online.  The growing availability of self-help solutions, which I wrote about in How to get online ads to quit following you around, is the primary defense offered by the ad-network industry.

So who wants the government to get involved, anyway? Rockefeller's proposal quickly gained support from an array of consumer groups, privacy advocates, and civil libertarians, including the American Civil Liberties Union, Consumer Federation of America, Consumers Union, Electronic Frontier Foundation, Privacy Rights Clearinghouse, Consumer Watchdog, Consumer Action, and the Center for Digital Democracy.

"This is a movement whose time has come," Jamie Court, of Consumer Watchdog, said in a telephone news conference arranged by the bill's backers. In a blog item, Court expanded on his theme:

We cannot be stalked as we shop in brick-and-mortar stores. Yet whatever we do online is tracked, usually without our knowledge and consent. The data may help target advertising, but can also be used to make assumptions about people in connection with employment, housing, insurance and financial services; for purposes of lawsuits against individuals; and for government surveillance.

Jeffrey Chester, of the Center for Digital Democracy, says the legislation is designed to protect privacy without needlessly hampering online commerce, but he concedes that it's a balancing act. "I think the bottom line is that Sen. Rockefeller introduced a bill that protects consumers first," Chester says.

Several of the advocates say they welcome the self-help mechanisms, such as Mozilla's inclusion of a do-not-track button in its latest browser, but argue that an honor-system approach is fatally flawed.  Without a law, "the problem is that there’s absolutely no requirement that companies recognize and respect" an Internet user's opt-out message, says Ioana Rusu, regulatory counsel for Consumers Union.

Perhaps the strongest message of support comes from groups concerned less about web commerce than about the Internet's role as today's public square - and about citizens' rights to read and explore ideas without worrying about anyone looking over their shoulders or drawing inferences. The ACLU's Chris Calabrese calls protection against online tracking "a crucial civil-liberties protection for the 21st century."

The Electronic Frontier Foundation is always wary of government intervention, But EFF attorney Lee Tien says Rockefeller's legislation would be a purposeful use of federal power to guard key rights.

Today's online activity "is speech, it is reading, it is associating with others," Tien says. "And all of that activity needs to be well-protected."