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Privacy & Data

A Sledgehammer, a Silver Bullet, or Something in Between? Experts Debate ‘Do Not Track’

Consumers of digital content deserve the right to choose whether companies can track their online activity.  That was the modest consensus that emerged from a lively panel entitled “Do Not Track: Yaaay or Boooh?” at this year’s Computers, Freedom & Privacy conference at Georgetown Law Center.  Beyond that, the panel was literally divided down the middle of the issue–the pro-Do Not Track (DNT) “yaaays” sitting to the left of moderator Jim Harper of the Cato Institute and the more skeptical “booohs” to his right.

The question of what constitutes meaningful choice was one major point of debate. Although Ryan Radia of the Competitive Enterprise Institute and fellow DNT skeptics allowed that Internet users should be able to express a preference not to be tracked, the two sides squabbled over the hoops consumers should be required to jump through in the process.
On the yaaay side, panelists applauded how quickly some of the major browser makers incorporated DNT mechanisms. “Technologically speaking,” said Harlan Yu, a PhD candidate at Princeton University’s Computer Science program, “the Do Not Track train has left the station.”
But Yu acknowledged that the “train” hasn’t reached its final destination; websites will need to honor users’ DNT requests in a meaningful way.  In the absence of regulatory action, it’s not clear whether these requests will be respected across the board.  Harper tried to pin down the yaays on whether federal legislation or regulation is necessary to back up DNT, but cynicism about the political process prevailed.  
The importance of consumer awareness of behavioral tracking practices was another matter of contention among the panelists. Responding to whimsically pointed questions from Harper, DNT proponent Ed Felten suggested that users are likely to believe they are better protected by technology and the law than they actually are. But Radia argued that consumers are “blissfully ignorant” and engage in a subconscious quid-pro-quo when they trade tracked information for free content.  
The issue of trust in the market rounded out the panel discussion. The yaaays expressed their optimism that the commercial ecosystem of the Internet can be trusted to work itself out and continue to provide free, valuable content if DNT significantly affects revenue from behaviorally tracked ads, while the booohs vehemently disagreed.
As a first step toward consensus on the issue, CDT has released a proposal that offers a definition for tracking in the context of DNT. DNT is clearly not a silver bullet, however, and CDT strongly supports the passage of baseline consumer privacy legislation that will incorporate DNT while also addressing other important privacy concerns.