· Issue 19 · August 2012
g n i t e k r Ma
L
ike it or not, “Do Not Track” (a/k/a “DNT”) is coming
Gary Kibel
Do Not Track ibel K y r ’s by Ga Impact e t a i l i f f on A W3C Actions
as a result of Washington, the privacy community
The W3C’s Tracking Protection Working Group has
and technology companies. As industry moves closer
been meeting since September 2011 to establish techno-
to adopting some form of DNT, is it important to under-
logical standards for Do Not Track. Since then, the W3C has
stand what it is, what it is not and what it might mean for
issued a First Public Working Draft of “Tracking Compliance
the future of the affiliate marketing industry.
and Scope,” which defines the meaning of a Do Not Track
DNT generally refers to interactive companies honoring a user’s browser preference setting to stop online
preference and sets out practices for Web sites to comply with this preference.
tracking through the use of cookies and other technolo-
Participants in the W3C process have included repre-
gies by all sites through that user’s browser. The result
sentatives of Apple, AT&T, the Center for Digital Democra-
would be that companies would no longer serve that user
cy, the Electronics Frontier Foundation, Google, Microsoft,
targeted online ads.
Mozilla, Yahoo!, and the FTC, among others.
However, there is far from unanimity on how far Do Not Track should extend and whether it should be an optin or opt-out user preference.
Microsoft Microsoft, a participant in the W3C project, recently
It may very well be that industry adopted Do Not
surprised the industry by unilaterally announcing that In-
Track would not only result in an opt-out from targeted or
ternet Explorer 10 would have the Do Not Track feature on
behavioral advertising, but would opt-out users from all
by default. This position goes farther than the FTC and W3C
tracking for any purpose; including for purposes of affili-
which have indicated that DNT will be option for users to
ate marketing.
select, but will not be the default position. Based on the
As an industry that relies upon accurate tracking to properly function, wide-spread adoption of DNT could be a
market share of Internet Explorer, this could have a huge impact.
cataclysmic event. Key Questions for the Affiliate FTC Privacy Report
Marketing Industry
The Federal Trade Commission (“FTC”) stated in its
There are many unanswered questions in this DNT
privacy report earlier this year that Do Not Track is an
process, such as (i) what exceptions to the all or noth-
important area where progress is needed. Moreover, the
ing DNT preference will be implemented, (ii) will websites
report added that the FTC would work with browser ven-
honor the DNT preference setting if it is implanted and (iii)
dors, industry groups, and the World Wide Web Consor-
how will industry trade groups and the FTC react.
tium (“W3C”), an international standards-setting body, to
There will certainly be an impact on the affiliate mar-
“complete implementation of an easy-to-use, persistent,
keting industry. The question is how great of an impact
and effective Do Not Track system.”
and how will the industry adapt to life in a DNT world?
Gary Kibel is a Partner with the law firm of Davis & Gilbert LLP.
23