US Ad Lobby Tries to Hijack Do Not Track

How can one rationally explain the bizarre—and politically insensitive—behavior of US advertising lobbyists at last week’s Do Not Track (DNT) meeting held by the WC3 in Amsterdam?  Representatives of the Digital Advertising Alliance (DAA) showed their contempt for the issue of protecting the privacy of consumers and citizens online.  In a series of proposals which shocked and dismayed officials of the European Union (EU) and others, the DAA (which includes the Direct Marketing Assoc., Interactive Ad Bureau and the Assoc. of National Advertisers and others) asked that all of the industry’s sophisticated, pervasive and ubiquitous data collection practices be declared exempt from any DNT safeguards.  Offering formal recommendations for DNT that illustrate how George Orwell’s “Doublespeak” concept is alive still today, the DAA suggested that: 

“Marketing should be added to the list of "Permitted Uses for Third Parties and Service Providers" in Section 6.1 of the Tracking Definitions and Compliance Document.”

This statement by the DAA formally petitioned the W3C, in essence, to have all marketing exempt from the impact of any DNT system.  By calling for marketing be declared an officially acceptable practice that could ignore DNT,  the ad lobby revealed a perverse worldview:  all online commercial data collection practices should be allowed even when a user chooses not to be tracked on the Internet.

On the W3C mailing list during the meeting, I asked the DAA representative to explain what she meant calling for such an exemption.  She replied:

“Marketing fuels the world. It is as American as apple pie and delivers relevant advertising to consumers about products they will be interested at a time they are interested.  DNT should permit it as one of the most important values of civil society.  Its byproduct also furthers democracy, free speech, and – most importantly in these times – JOBS.  It is as critical to society – and the economy – as fraud prevention and IP protection and should be treated the same way.  

Marketing as a permitted use would allow the use of the data to send relevant offers to consumers through specific devices they have used. The data could not be used for other purposes, such as eligibility for employment, insurance, etc. Thus, we move to a harm consideration. Ads and offers are just offers – users/consumers can simply not respond to those offers – there is no associated harm. Further, DNT can stop all unnecessary uses of data using choice and for those consumers who do not want relevant marketing the can use the persistent Digital Advertising Alliance choice mechanism.  This mechanism has been in place for 2 years.”

That was soon followed by another proposal made by the ANA:  "Advertising" should be added to the list of "Permitted Uses for Third Parties and Service Providers" in Section 6.1 of the Tracking Definitions and Compliance Document.”

So both all advertising and marketing—the landscape where all the practices which have raised privacy and consumer protection concerns—would not have to comply with DNT.  Forget about worries related to Behavioral Targeting, Retargeting/Remarketing, Social Media Influencer Targeting, 1st +Third Party Data Profiling, Consumers sold via Ad Exchanges in milliseconds to the highest bidder, Geo-Location Tracking, Invisible “E-Scores” about your finances, etc.  According to the values of the US industry lobbyists, these practices are merely harmless expressions of commerce—so get over your concerns about surveillance, manipulation, and any impact digital data practices have on your finances, access to health information, or the role it plays with your children, etc.

Such a self-serving position from groups representing the leading American companies—Google, Facebook, Coca Cola, etc.—dismayed representatives of the EU.  For the EU, privacy is a deeply cherished concept, embedded in its framework (and hardened by the cruel lessons learned from both Fascism and Communism).  They felt that the US ad lobby’s proposal made a mockery of the serious concerns raised by data collection online.  Jacob Kohnstamm, the chair of the EU’s main privacy regulatory group (Article 29 Working Party) and the head of the Data Protection Authority in the Netherlands, soon offered a swift rebuke via the International Herald Tribune/NY Times: 

“It seems the process has been hijacked by commercial interests”…Mr. Kohnstamm… said proposals before the W3C would let advertisers continue collecting personal data through each mouse click, without obtaining prior consent.  “The Do Not Track standard would be utterly deceptive to users and act as a disguise for continuation of unfair and intransparent business practices,” he said. If adopted in this fashion, European regulators would then be left to police advertisers’ actions, initiating proceedings based on their own investigations or on individual complaints, he said.

Although it was the substance of their ideas (or lack thereof) which many at the meeting and outside observers found either objectionable or inappropriate, the style of several DAA lobbyists towards the process and the W3C leadership bordered often on rude behavior.  Somehow the strategy of the US ad lobbyist groups was focused on bullying their way through the process.  By their ideas and conduct, however, US ad lobbyists reinforced the unfortunate stereotype of the American tourist visiting Europe whose demeanor reflects greater familiarity with fast-food restaurants back home than the role required when discussing issues with colleagues at international policy meetings.  I was embarrassed, to be honest, for the actions by the DAA did not serve America well-- with its Allies and trading partners.

I won’t spend time now discussing how the industry has already so weakened the concept of DNT that any hopes for its role hangs by a slender thread. The DAA’s claim that its own self-regulatory system can substitute for a DNT standard is both self-serving and incorrect.  But their fear of a W3C endorsed DNT technical standard that could provide some additional power to consumers is clearly palatable. 

Despite my concerns on the state of the W3C DNT proposal, my CDD is committed to improving the outcome—and the next several weeks will reveal its final fate.  However, though they obviously didn’t recognize it consciously, the DAA’s attempts to have the W3C endorse US online ad industry practices revealed them as a sort of digital “Birthers,” in my opinion.  Birthers are the people who cling to the dangerous and maddening notion that President Obama wasn’t born in the U.S.  That the groups representing most of the US companies couldn’t offer a nuanced viewed of the problem—admitting their industry’s own shortcomings and proposing some new and effective solution—sent a signal to the EU and others that US online companies lack commitment (let alone sophistication) about protecting privacy.

 All I can say is that we should all be grateful that the people working with the DAA only represent the US ad industry—and not part of any delegation trying to bring peace to the Middle East or end the war in Afghanistan.  More to come.