August 9, 2013
By Gary Kibel
While the W3C Tracking Protection Working Group takes a summer vacation from its cantankerous and sometimes amusing debate over a Do Not Track (DNT) law, it is worth taking a moment to consider how compliance could be enforced from a legal perspective if final DNT standards did come out of the group.
Unlike Steven Spielberg’s Abraham Lincoln who extolled, “I am the president of the United States of America, clothed in immense power,” the W3C is actually powerless.
Track suit
The W3C is not a legislative body and has no ability to enforce the standards itself.
Therefore, advertising technology companies might simply be inclined to ignore any pronouncements from the W3C, much like the Microsoft DNT header is currently ignored by the industry.
However, while the W3C does not have any direct power, enforcement could come through a number of routes, including trade associations, regulatory pressure, industry inertia, contractual requirements and private litigation.
Just as the current self-regulatory principles for online behavioral advertising are enforced by trade associations who require compliance as a condition of membership, DNT could be similarly enforced.
Of course, in the current environment, the key advertising trade associations agreeing with the W3C standard and mandating compliance is just about as likely as my Mets winning the World Series.
There is no law in the United States that directly addresses honoring a DNT signal, though a DNT bill is pending in Congress.
However, Section 5 of the Federal Trade Commission Act permits the FTC to regulate unfair or deceptive acts or practices in or affecting commerce.
The question then is whether or not the failure to honor a DNT signal is “deceptive” or “unfair.”
If the FTC were to take the position that a statement or omission regarding DNT compliance is deceptive or that the failure to honor the DNT signal is unfair, that could radically change the legal liability analysis.
Class of its own?
One could argue that it is the browser manufacturers who could face liability for deceptive acts if users are provided with rosy language regarding a DNT option in a browser that is essentially meaningless since the industry does not honor the signal.
Industry inertia cannot be discounted.
If consumer demands or competitive pressures became real, it could force an ad tech company to reconsider compliance to keep pace.
DNT compliance could also grow if various players in the ad tech ecosystem began to contractually require compliance.
If your primary ad exchange with contractual leverage over your company required compliance, you would do so.
Lastly, we cannot eliminate the scourge of every business – lawyers (present company excluded).
Private litigants could try and assert through class actions that the failure to honor a DNT signal has harmed the consumer.
While current privacy class action case law is not favorable to this position, there are many courts in the United States and many eager class action lawyers willing to give it a shot.
You may now rejoin your regularly scheduled TPWG emails.
Gary Kibel is partner with New York law firm Davis & Gilbert LLP in the advertising, technology, digital media and privacy groups. Reach him at gkibel@dglaw.com.
Share your thoughts. Click here
