CookieLaw Blog November 30, 2012

Do Not Track – Beyond Compliance

Earlier this week I was presenting an overview of the current state of play with the attempts to agree a Do Not Track standard.  It was part of a panel discussion at the ICC International ePrivacy seminar, looking at developments with different privacy regulation efforts impacting European businesses at the moment.

I was talking about some of the seemingly intractable differences of view between privacy advocates and commerce in general, but online advertising businesses in particular.  Asked to make a prediction, I felt it was likely that the commercial interests were more likely to win out – and the standard itself would end up being less robust than certainly EU interests would want, and possibly what Jon Leibowitz of the US Federal Trade Commission is looking for as well.

Days later the news broke that the W3C Tracking Protection Working Group had appointed a new co-chair to lead discussions through to the agreement of a standard. Peter Swire, former privacy advisor to the Clinton administration, has replaced Aleecia McDonald, a Stanford University professor who was also representing Mozilla (the makers of the Firefox browser).

Its too early to say what impact this change in personnel might have, but it does underline the fact that efforts to agree the standard are well behind the initial deadline of the end of 2012.  Political pressure for a swift and acceptable outcome is mounting on all sides.

On the flip side – it is clear that consumer take-up and awareness of Do Not Track is on the increase, as are expectations that their preferences will be respected.  In May this year, the Mozilla Privacy blog reported a 35% increase in the number of desktop Firefox users switching on Do Not Track, in less than six months.

We have seen Microsoft release IE10 in Windows 8 with Do Not Track switched on by default in response to consumer demand, and Google adding the function to the Chrome browser for the first time.   It will also be appearing as a user option in at least one manufacturers range of network routers aimed at the domestic market.

All of this suggests that more and more people will be able, and will choose, to make a Do Not Track request to the websites they visit. Yet the reality of the situation today is that few major websites or publishers are respecting the request.  When the standard does get agreed, we will likely see that change over time, but even then there is likely to be a serious disconnect between the expectations of consumers about how their request should be interpreted, and the minimum standard for compliance.  People are likely to get less increased privacy from the standard than they want or expect.

My feeling is that this failure to meet expectations, if it does transpire in this way, will become a bigger issue in 2013 and risks an increasing erosion of trust between consumers and business.

Such loss of trust represents a threat, but of course it is also an opportunity for some organisations.  Any business that is seeking to use trust as a competitive differentiator would be well advised to consider how they can meet or exceed their customer’s expectations of privacy through the use of Do Not Track.

However, to do this they will need to go beyond complying with whatever the industry decides is an acceptable definition of Do Not Track.  They will need to adapt their tracking behaviour to match the expectations of their own brand – or they will risk eroding its value.

This is one of the reasons why we have decided to build functionality into our Optanon privacy tools that enables website owners to go beyond a minimum-impact Do Not Track standard.  Optanon customers can, right now, determine what Do Not Track means to their customers, and their brand values.  Then they can adapt their tracking behaviour to meet those expectations.

We don’t necessarily expect people to embrace this overnight – there is still a long way to go, however it is important to us that when our customers are ready for it – we have the feature already built in.

If anyone would like to find out more about the Do Not Track features in Optanon, please get in touch, or sign up for a 30 day trial to see it for yourself.

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