Do Not Track: How Small Groups Have a Big Impact on Privacy Debate

Groups like Center for Digital Democracy played key roles in influencing privacy legislation introduced in 2011.

The Federal Trade Commission plans to release the final version of its draft privacy report, which popularized the idea of a do-not-track system, in coming weeks. The report, which on December 8 FTC Chairman Jon Leibowitz said will be finalized “in the next month or so,” inspired several privacy bills currently pending in Congress.

However, many of those bills – and even the FTC’s approach to dealing with consumer privacy online – have been influenced by a handful of consumer advocacy and privacy organizations that have pushed for more stringent laws giving consumers tighter control over their personal information.

jeffchesterAmong the most vocal groups is Center for Digital Democracy, a grant-funded public interest organization with no members. “We work on the Hill to help shape public perception,” said Jeff Chester (pictured), executive director of the advocacy group, which consists of one other staffer and a full-time consultant.

A small outfit, the CDD has been a loud and steady voice crying for increased privacy restrictions on industry for years. Chester played a key role in pushing for passage of the Children’s Online Privacy Protection Act, and has formed a coalition of groups supporting the FTC’s recently proposed update to COPPA. Among those changes is one requiring parental consent for data collection for tracking and targeting behavioral ads to children.

As it often does, last week the CDD issued a press release highlighting its support for tougher rules to protect children’s privacy online. The release claimed that many of the top kids sites “fail to provide accurate, clear, and complete information that parents need to make informed decisions.”

Though child-specific, the COPPA related work goes hand-in-hand with the CDD’s relentless push for the FTC, lawmakers, and the White House to restrict companies like Facebook and Google, as well as the ad industry as a whole, from collecting consumer data and using it to target marketing messages without express consent.

Tracking the Origins of Do Not Track

According to Chester, the CDD has helped organize meetings and briefings with the FTC. “We’re organizing meetings to go in there so the commissioners see there are a lot of groups involved,” he said. Referring to the ad industry’s self regulatory program under the Digital Advertising Alliance, he continued, “I organized one on the failings of the DAA scheme” a few months ago. The DAA program was put in place by advertising trade groups in the hopes of evading privacy legislation that could establish a more restrictive do-not-track system.

In December 2009 when the FTC held a series of privacy roundtables, the do-not-track concept was in its nascence. During those roundtable hearings, the CDD, along with organizations including the Electronic Privacy Information Center and World Privacy Forum, called for what then was referred to as a do-not-track registry. Fast forward a year later when the FTC officially called for a do-not-track program, stunning the online ad industry.

The do-not-track phrase soon found its way into the popular lexicon through a subsequent onslaught of mainstream news headlines. Then, legislators followed the lead, employing the term in three of six total privacy bills introduced in 2011.

One of those bills is right in the CDD’s wheelhouse. The Do Not Track Kids Act of 2011, co-sponsored by Rep. Ed Markey and Rep. Joe Barton, calls on the FTC to create regulations for site and app operators to provide “clear and conspicuous” explanation of personal data collection and how it’s used.

Educating and Influencing on Capitol Hill

“We played a key role in working with Congressmen Markey and Barton,” said Chester, who said CDD helped them “think about draft language for Do Not Track Kids.” In fact, Chester was quoted in May 2011 press releases from Markey’s office announcing the bill. Markey co-chairs the House privacy caucus that authored the House version of COPPA.

CDD also had “numerous meetings” with Senator John Kerry’s staff in relation to the Commercial Privacy Bill of Rights Act of 2011 he co-sponsored with John McCain, and “met regularly with Senator Rockefeller” on his Do-Not-Track Online Act of 2011.

Another group, the Center for Democracy and Technology, also helps lawmakers understand data collection and privacy issues. “I spent a lot of time on the Hill this year,” said Justin Brookman, director of the CDT’s Consumer Privacy Project. CDT aims to help “find middle ground between regulators and companies and consumer groups,” he said. When the Privacy Bill of Rights was in development, Brookman met or spoke with Kerry staff multiple times per week, he said. He often can be found meeting with the FTC or Commerce Department, or fielding questions from legislative staff on topics such as location privacy.

“A lot of our vision has ended up in a lot of the [privacy] bills,” said Brookman.

While consumer advocates and organizations like CDD and CDT have been instrumental in the creation of privacy legislation, media outlets can be especially influential, lending an air of legitimacy to concerns raised by such groups. In several press releases announcing privacy-related inquiries sent to companies including Facebook, Markey’s office cited reports published in The Washington Post, The New York Times, and most frequently, The Wall Street Journal. In fact, since October 2010, at least five press releases from Markey’s office cited Journal stories associated with its “What Do They Know” series, which became fodder for legislators and a thorn in the side of many in the online ad industry.

The Journal series “was important” in the privacy debate, said Brookman, who said he heard from congressional staff, “My boss has been reading these stories in the Wall Street Journal.”

Added Chester, “When you can point to one of the leading daily newspapers in the country…that helps.” He claimed that the CDD provided “extensive research in the kids market” to the Journal to assist in privacy news coverage.

Despite the work of privacy advocates and the existence of several pending privacy bills, there are few, if any, signs that a new privacy law will be passed soon. “People are increasingly skeptical that much is going to happen in the election year,” said Brookman.

Still, Chester and his colleagues will keep plugging away. In addition to meeting with European Union officials regarding E.U. privacy laws, he expects to assist with future discussions regarding codes of conduct for the U.S. Commerce Department’s data privacy framework. He’ll also continue working with the FTC “to help shape” its upcoming final privacy report, said Chester.

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