Congress Takes Stab at 'Do Not Track' Legislation

Momentum is building behind the US Federal Trade Commission call for some sort of "do not track" system. Each of the major Web browser vendors have come up with their own unique approach to preventing Web surfing habits from being tracked, and now Congress is getting in on the act with pending "do not track" legislation.

I spoke with Behnam Dayanim, co-chair of Axinn Veltrop & Harkrider's Litigation and Regulatory Group. Behn has extensive experience in U.S. and global personal-data privacy issues and shared some thoughts about the "Do Not Track' bill, and what we can expect going forward.

It is nice that Congress is aware of the issue, but the current "do not track" bill is unlikely to have much success.
Graphic: Diego Aguirre
Behn explained that this legislation is the first effort in the United States to classify an IP address as personal or sensitive information worthy of protection. Behn added "The bill leaves quite a lot to the Federal Trade Commission to sort out. That is a reasonable approach--and a refreshing change from how much congressional legislation is drafted-- but it would portend a vigorous and likely difficult rulemaking if enacted, as the FTC attempts to implement its mandate."

If the FTC wants to know how much fun that game is, it need look no further than the FCC. The FCC has a similarly broad mandate to regulate interstate and international communications by radio, television, wire, satellite and cable. However, virtually every FCC decision or attempt at fulfilling that mandate is met with massive resistance from the GOP and an overwhelming lobbying effort by the industries the FCC is charged with overseeing.

Behn describes one example of the nuanced minefield this legislation might create for the FTC. "It defines "sensitive information" to include information that "relates directly" to an individual's physical or mental health. That definition raises a lot of questions - if I visit WebMD or a site for a psychiatric center near me, does that browsing behavior "relate" to my physical or mental health? In truth, the answer may depend on why I went there - for myself, for a loved one, out of idle curiosity."

The legislation itself takes a broad approach rather than directing specific solutions. Some sort of universal opt-out framework--similar to the telemarketing "do not call" registry, would be best, but the bill leaves open the possibility that "do not track" could be implemented at the browser level. That system requires a lot of user awareness and interaction, though--like requiring people to register for different "do not call" plans depending on which phone hardware or phone company they use.

The FTC could take up the challenge and develop a more universal opt-out approach, but like FCC efforts to impose net neutrality, any FTC attempt to regulate on a broad scale is bound to be met with controversy and resistance.

Ultimately, though, Behn is confident the bill will not pass--at least not in its entirety or in its current form. "Although we may see some internet privacy legislation from this Congress, I would not rate the chances as high, and any bill that does pass will reflect more of a self-regulatory bent than is reflected in Rep. Speier's bill."

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