Industry Commits to Enforceable Browser-Based Do Not Track

White House endorses privacy bill of rights, will push Congress to codify

By John Eggerton -- Broadcasting & Cable, 2/23/2012 12:01:00 AM

The White House will push Congress to put legislative muscle behind an online privacy bill of rights, but in the meantime will push industry to adopt those principles voluntarily. That would allow the Federal Trade Commission to go after anyone who makes and breaks that pledge as having engaged in an unfair and deceptive practice.

Separately, the Digital Advertising Alliance, which includes the major advertising associations, has committed to a browser-based do-not-track option that will allow Web users to opt out of behavioral advertising and would be respected across those participating in DAA's self-regulatory program, which Stu Ingis, DAA General Counsel, said Wednesday is about 90% of businesses.

The browser-based option is still an opt-out, rather than opt-in mechanism, for Web surfers. But those who opted out would be preventing "most" data that would otherwise be collected, says Ingis, with narrow carve-outs for fraud protection.

The White House in statement said that "nearly" 90% of the companies responsible for delivering online behavioral advertising had committed to using the browser-based do-not-track technology including Google, Yahoo!, Microsoft, and AOL. DAA says that it is targeting 9 months for standard language and "user experience" for the opt-out mechanism across all participating browsers.

Both those announcements are coming officially Thursday at a white House privacy briefing, according to administration officials, regulators and industry representatives in a White House briefing with reporters in advance of that event.

The Federal Trade Commission has long pushed the browser-based approach. FTC Chairman Jon Leibowitz praised the industry for the announcement, though he did not suggest it was a solution to online privacy. "This is not the end, and may not be the beginning of the end, but this is a big step," he said told reporters.

Leibowitz said that what he is seeing is "a lot for forward progress by industry." He said that was a good thing for consumers and their privacy.

At the event Thursday, the White House will officially endorse the Commerce Department recommendation of a privacy Bill of Rights consisting of seven principles (see below). That recommendation is the final work product of a Commerce green paper on privacy issued in Dec. 2010.

The goal is to both protect U.S. consumers and to make it easier for Internet companies to do business internationally, where there have been concerns about U.S. privacy policies. "The Administration's plan lays the groundwork for increasing interoperability between the U.S. data privacy framework and those of our trading partners," the White House said late Wednesday.

White House Deputy Chief Technology Officer Daniel Weitzner told reporters that the White House did not think self-regulation solved the entire problem-given that not all businesses have to step and sign on. "For us, the blueprint that is the consumer privacy bill of rights will give us a basis for engaging with Congress and encouraging them to develop legislative protections."

He said it was a complicated legislative challenge. Commerce Secretary John Bryson said that they would work with Congress to implement legislation, but would move forward regardless. "We cannot wait," he said. Congress is unlikely to be able to pass comprehensive privacy legislation before those legislators turn to reelection efforts.

Here is the "Privacy Bill of Rights," as outlined by the White House and backed by the President:

1. INDIVIDUAL CONTROL:  Consumers have a right to exercise control over what personal data companies collect from them and how they use it.  Companies should provide consumers appropriate control over the personal data that consumers share with others and over how companies collect, use, or disclose personal data.  Companies should enable these choices by providing consumers with easily used and accessible mechanisms that reflect the scale, scope, and sensitivity of the personal data that they collect, use, or disclose, as well as the sensitivity of the uses they make of personal data. 

Companies should offer consumers clear and simple choices, presented at times and in ways that enable consumers to make meaningful decisions about personal data collection, use, and disclosure.  Companies should offer consumers means to withdraw or limit consent that are as accessible and easily used as the methods for granting consent in the first place.

2. TRANSPARENCY:  Consumers have a right to easily understandable and accessible information about privacy and security practices.  At times and in places that are most useful to enabling consumers to gain a meaningful understanding of privacy risks and the ability to exercise Individual Control, companies should provide clear descriptions of what personal data they collect, why they need the data, how they will use it, when they will delete the data or de-identify it from consumers, and whether and for what purposes they may share personal data with third parties. 

3. RESPECT FOR CONTEXT:  Consumers have a right to expect that companies will collect, use, and disclose personal data in ways that are consistent with the context in which consumers provide the data.  Companies should limit their use and disclosure of personal data to those purposes that are consistent with both the relationship that they have with consumers and the context in which consumers originally disclosed the data, unless required by law to do otherwise.  If companies will use or disclose personal data for other purposes, they should provide heightened Transparency and Individual Control by disclosing these other purposes in a manner that is prominent and easily actionable by consumers at the time of data collection.  If, subsequent to collection, companies decide to use or disclose personal data for purposes that are inconsistent with the context in which the data was disclosed, they must provide heightened measures of Transparency and Individual Choice.  Finally, the age and familiarity with technology of consumers who engage with a company are important elements of context.  Companies should fulfill the obligations under this principle in ways that are appropriate for the age and sophistication of consumers.  In particular, the principles in the Consumer Privacy Bill of Rights may require greater protections for personal data obtained from children and teenagers than for adults.

4. SECURITY:  Consumers have a right to secure and responsible handling of personal data.  Companies should assess the privacy and security risks associated with their personal data practices and maintain reasonable safeguards to control risks such as loss; unauthorized access, use, destruction, or modification; and improper disclosure. 

5. ACCESS AND ACCURACY:  Consumers have a right to access and correct personal data in usable formats, in a manner that is appropriate to the sensitivity of the data and the risk of adverse consequences to consumers if the data is inaccurate.  Companies should use reasonable measures to ensure they maintain accurate personal data.  Companies also should provide consumers with reasonable access to personal data that they collect or maintain about them, as well as the appropriate means and opportunity to correct inaccurate data or request its deletion or use limitation.  Companies that handle personal data should construe this principle in a manner consistent with freedom of expression and freedom of the press.  In determining what measures they may use to maintain accuracy and to provide access, correction, deletion, or suppression capabilities to consumers, companies may also consider the scale, scope, and sensitivity of the personal data that they collect or maintain and the likelihood that its use may expose consumers to financial, physical, or other material harm.

6. FOCUSED COLLECTION:  Consumers have a right to reasonable limits on the personal data that companies collect and retain.  Companies should collect only as much personal data as they need to accomplish purposes specified under the Respect for Context principle.  Companies should securely dispose of or de-identify personal data once they no longer need it, unless they are under a legal obligation to do otherwise.

7. ACCOUNTABILITY:  Consumers have a right to have personal data handled by companies with appropriate measures in place to assure they adhere to the Consumer Privacy Bill of Rights.  Companies should be accountable to enforcement authorities and consumers for adhering to these principles.  Companies also should hold employees responsible for adhering to these principles.  To achieve this end, companies should train their employees as appropriate to handle personal data consistently with these principles and regularly evaluate their performance in this regard.  Where appropriate, companies should conduct full audits.  Companies that disclose personal data to third parties should at a minimum ensure that the recipients are under enforceable contractual obligations to adhere to these principles, unless they are required by law to do otherwise.