Policy Matters Too

Nadim Kobeissi recently wrote about Do Not Track, and effectively restated the engineering-based reasons why the proposed standard will fail. The standard, generally, would let users set their web browser to ask websites not to deposit tracking cookies on their computers. Specifically, Nadim wrote:

Do Not Track is not only ineffective: it’s dangerous, both to the users it lulls into a false belief of privacy, and towards the implementation of proper privacy engineering practice. Privacy isn’t achieved by asking those who have the power to violate your privacy to politely not do so — and thus sacrifice advertising revenue — it’s achieved by implementing client-side preventative measures. For browsers, these are available in examples such as EFF’s HTTPS Everywhere, Abine’s DoNotTrackMe, AdBlock, and so on. Those are proper measures from an engineering perspective, since they attempt to guard your privacy whether the website you’re visiting likes it or not.

He is writing as an engineer and, from that perspective, he’s not wrong. Unfortunately, as an engineer he’s entirely missing the broader implications of DNT: specifically, it lets users proactively inform a site that they do not give consent to being tracked. This proactive declaration can suddenly activate a whole host of privacy protections that are established under law; individuals don’t necessarily have to have their declarations respected for them to be legally actionable.

Now, will most users have any clue if their positions are being upheld? No, of course not. This is generally true of any number of laws. However, advocates, activists, academic researchers, and lawyers smelling class-action lawsuits will monitor to see if websites are intentionally dismissing users’ choice to refuse being tracked. As successful regulatory/legal challenges are mounted website owners will have to engage in a rational calculus: is the intelligence or monies gained from tracking worth the potential regulatory or legal risk? If initial punishments are high enough then major players may decide that it is economically rational to abide by DNT headers, whereas smaller sites (perhaps with less to lose/less knowledge of DNT) may continue to track regardless of what a browser declares to the web server. If we’re lucky, these large players will include analytics engine providers as well as advertiser networks.

Now, does this mean that DNT will necessarily succeed? No, not at all. The process is absolutely mired in confusion and problems – advertisers are trying to water down what DNT ‘means’, and some browser manufacturers are making things harder by trying to be ‘pro-privacy’ and designing DNT as a default setting for their browsers. Moreover, past efforts to technically demonstrate users’ privacy have failed (e.g. P3P), and chances are good that DNT will fail as well. However, simply because there are technical weaknesses associated with the standard does not mean that the protocol, more broadly, will fail: what is coded into standards can facilitate subsequent legal and regulatory defences of users’ privacy, and these defences may significantly improve users’ privacy online.