What You Need To Know About the Return of (Fundamentally Flawed) “Do Not Track” Legislation

Some of you may have read this past week about Sen. Jay Rockefeller’s (D-W.Va.) Do Not Track Online Act, which he has reintroduced this year after it failed to emerge from committee in 2011. Anyone who operates a website or mobile app should read the bill, which you can do here.

The bill would force websites and application providers to give consumers an easy way to opt-out of having information about their online behavior collected. In this way, advertisers would be deprived of the data that enables them to provide targeted offers and promotions. At first glance, the bill appears to address a valid societal concern about the erosion of privacy that results from the apps and websites we use extracting more information about us and our online behaviors. Collectors of this information profess to use it to improve the relevance and delivery of content and services to our devices and, by extension, us. Critics of information collecting fear that the practice will lead someday to an total collapse of online privacy, linking actual users, by name, and the devices they use to the apps and sites they frequent. I’ve said before that aside from an anxious media and activists, this is a relatively non-existent issue for the typical consumer, who rightly is more concerned about his credit card numbers being hacked and identity stolen. Rockefeller’s bill does nothing to safeguard consumers from these legitimate threats.

This bill was flawed in 2011, when Rockefeller first introduced it, and it remains flawed today. First, it imagines a harm that defies measurement, at least thus far, and assigns penalties for violations. While it’s possible that the technology we use has given rise to an omniscient Big Brother, the media has yet to uncover it. That’s because Big Brother likely does not exist. Any service caught having gathered or users’ names and device information would be subject to condemnation both in the marketplace and by legislative bodies that need no arm-twisting to grandstand in front of the camera. Second, it presumes that anonymity is a right that requires legislative action to force service providers to act. The problem with that way of thinking: consumers already can opt-out today. Industry-led programs exist that enable consumers to opt-out of data sharing. If they doubt the efficacy of those initiatives, they always can exercise the ultimate opt-out and turn off their devices. If the bill passes, Congress would thus force regulatory cost on an industry and its consumers to solve a problem that thus far does not exist and for which private remedies already exist.

I believe the bill is borne of a fundamental lack of understanding about the way information determines user experience online and in the apps we consume. Opting out of data sharing does not equal opting out of having ads served via websites or apps. Instead, opting out would result in the delivery of seemingly random advertising. We have a term for this already. It’s called “spam.”

So why would Sen. Rockefeller reintroduce the bill? For one thing, he’s not seeking reelection, so this could represent a pet project of his, one last chance at shaping his legacy by influencing the direction of a significant portion of the private economy. It also could represent a populist assertion of authority designed to challenge the Silicon Valley-based heart of the technology industry. I’m sure that Senators Dianne Feinstein and Barbara Boxer, both Democrats representing California, are not looking forward to choosing between party loyalty to a fellow Democrat and a provincial duty to stand by their constituents.

If one day enough consumers raise their concerns about privacy, data collecting and usage, watch for Internet service providers to react with market-based alternatives, such as allowing consumers to pay a premium for ad-free versions of apps and websites. Such a response, delivered by people who have a vested interest in keeping their consumers happy, would be far more likely to produce a good outcome than bureaucrats. Let’s hope the 2013 version of this bill meets the same fate as the 2011 vintage.

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