Intellectual Property Articles

Privacy Groups Advocate "Do Not Track List"
by Walter W. Hansell, Cyrus Wadia

November 15, 2007

Privacy and consumer groups have asked the U.S. Federal Trade Commission ("FTC") to create a "Do Not Track List" intended to protect consumers from having their online activities monitored and used in targeted advertising. 

"Behavioral advertising" is a term for the practice of collecting an individual's online or other personal activity and preferences, and targeting specific advertising to those individuals based upon their previous Internet use.  As Internet advertisers and methods of collecting information about consumers' online activities grow more sophisticated, consumer advocates and privacy experts have raised concerns regarding the privacy implications of such data collection, while others such as Oracle's Larry Ellison have suggested instead that given modern technology, electronic privacy is a mirage and people should "get over it". 

Existing law provides specific privacy rules and limitations for a subset of service providers such as cable television operators and banks, while providing little or no regulation for Internet services such as Amazon and eBay, which in effect are able to offer service features for their customers based specifically on behavioral tracking and mining individual online usage and behavior.

The FTC held a town hall earlier this month entitled "Ehavioral Advertising: Tracking, Targeting, and Technology" to address the consumer protection issues raised by behavioral advertising.  In anticipation of that meeting, the Center for Demgocracy and Technology, Consumer Action, Consumer Federation of America, Electronic Frontier Foundation, Privacy Activism, Public Information Research, Privacy Journal, Privacy Rights Clearinghouse and World Privacy Forum, recommended that the FTC adopt a "Do Not Track List" similar to the "Do Not Call" telephone lists.  The "Do No Track List" would prohibit advertisers from tracking consumers' online activities for the purpose of targeted advertising unless consumers were clearly notified that their web surfing is being tracked, and consumers were allowed an opportunity to opt out.  Advertisers would also be required to submit addresses of websites that track consumers to a public FTC database.

The FTC is presently considering the recommendations.  It is unclear whether it is realistic or even possible to define or prevent such "tracking" given the inherent technologies of online services.

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