“Do Not Track” regulation: will it ever materialize?

By: Alicia Reyes-Hernandez


The “Do Not Track” proposition has been part of the consumer’s information privacy protection discussion for several years.  Although it has proven to be a very polarizing topic among privacy advocates and industry representatives, particularly from the advertising industry, there is a consensus among them and the government that it is one viable and desirable mechanism to heighten the protection of consumer’s privacy online.


In that line, on February 2012, the Obama Administration officially endorsed the adoption of the “Do Not Track” system as part of their Consumer Privacy Bill of Rights proposal.  Following the publication of the mentioned privacy framework, government officials, digital advertisers, browser makers and privacy advocates embarked on a round of conversations with the purpose of reaching a consensus on how to delimit and implement the “Do Not Track” system.  One year later, however, no consensus has been reached.  Among the issues keeping the negotiations on a deadlock is how to determine the consumer’s intent over online tracking, particularly whether the “Do Not Track” mechanism should be an opt-in or an opt-out feature.  Over that matter, the advertising industry has opposed to the opt-out approach because of the negative impact it will have on their business.  One of their main arguments is that big companies like Google and Yahoo will not be affected by the opt-out approach since they will still be able to track the behavior of the users in their respective web sites.  Given the immense amount of users that they receive every day, they assert that the impact in terms of the collection of consumer behavior information is minimal, thus putting the advertising companies in a competitive disadvantage.




Considering the aforesaid, a general agreement among the players in the private sector seems implausible, at least in the near future.  In the mean time, Congress has decided to step into the discussion once again.  On February 28, 2013, Sen. Jay Rockefeller introduced the “Do-Not-Track Online Act of 2013” for consideration by Congress.  The proposed bill implements an opt-out approach to the “Do Not Track” mechanism by requiring online companies, web browsers and app makers to provide the consumers with the option to opt out of their online behavior tracking practice.  The bill, if enacted as drafted, will also give the Federal Trade Commission (FTC) authority to enforce the Act and to formulate the appropriate mechanisms that will allow consumers to notify if they want to be tracked online or not.




It is too early in the process to know with certainty what will happen with the “Do-Not-Track Online Act of 2013”.  From the outset, however, the probability of this bill becoming law looks very grim.  It is expected that advertising and online companies will vehemently oppose to this bill.  This opposition, as well as the apparent lack of public clamor for a “Do Not Track” system, seems at this point as insurmountable obstacles in the path of this bill.