RE: Issue 115, exemptions, best practices: Issue 25 and 34

We would oppose this extensive list of requirements on publishers.  It seems completely out of scope for this standard.  A DNT standard would be useful in many regards but it must be easily implemented or it will not be adopted.  I'm afraid that if we set up such a strict regimen for first parties to obtain consent that nobody would adopt this standard.  It is voluntary, after all.

DNT should be about giving consumers the ability to opt out of tracking by parties with which they have no relationship (i.e. third parties).  Consumers can choose to visit different sites for content.  Trustworthy and respected publishers face this reality every day and go to great lengths to respect consumer privacy, because they don't want to lose consumers.  (And, as others have noted, bad actors aren't going to pay any attention to this standard).  On the other hand, consumers don't have the same ability to choose the nature of their relationship with third parties like they do with first parties.

Specifically, regarding Jeff's proposal, I believe most of the problems you are trying to solve would be easily covered by the FTC's fair and deceptive practices authority.  But, again, the bad actors will likely remain bad actors regardless of what this group does.

All that said, I think we should focus this standard on giving consumers choice with regard to third-party collection of their data.  Specifying how first parties should obtain consent and/or how they should interact with their consumers is out of scope.  Ultimately, I believe it would undermine the otherwise good work being done here.

From: Alan Chapell [mailto:achapell@chapellassociates.com]<mailto:[mailto:achapell@chapellassociates.com]>
Sent: Monday, February 13, 2012 3:29 PM
To: John Simpson
Cc: Lee Tien; Amy Colando (LCA); Jeffrey Chester; Kathy Joe; Jules Polonetsky; public-tracking@w3.org<mailto:public-tracking@w3.org>; adam.phillips@realresearch.co.uk<mailto:adam.phillips@realresearch.co.uk>
Subject: Re: Issue 115, exemptions, best practices: Issue 25 and 34

Hi John -

It might be helpful to return to Jeff's original post. The primary issue that I'm raising is that Jeff's best practices below exceed the scope of what we as a group should be trying to address. If you believe that the below listed requirements are appropriate for this group to address in the spec - then I respectfully disagree.

Re: existing applicable law --- the FTC (and other regulators) have gone after (under Section 5 of the FTC Act) companies who have improperly used landing pages and other means in a way that they believed were deceptive and/or unfair to consumers.




Best Practices for sites to manage exemptions should include:

A site must provide accurate information to users on the actual data collection and use practices of the site.  This should include all information used for tracking, targeting, sales of profiles.
A site should not suggest that the ability to access information is dependent on blanket acceptance of a site's data practices.
A site should not use "immersive" multimedia applications designed to foster opt-in as a way to encourage a user agreeing to an exemption.
A site should not use a special landing page that has been designed principally to convert a user to agree to permit an exemption.
A site should not use social media marketing to urge a user to ask their "friends" to approve exemptions.
A site should not offer rewards and incentives for a user to approve of an exemption.




Cheers,

Alan Chapell
Chapell & Associates
917 318 8440


From: John Simpson <john@consumerwatchdog.org<mailto:john@consumerwatchdog.org>>
Date: Mon, 13 Feb 2012 12:19:02 -0800
To: Alan Chapell <achapell@chapellassociates.com<mailto:achapell@chapellassociates.com>>
Cc: Lee Tien <tien@eff.org<mailto:tien@eff.org>>, "Amy Colando (LCA)" <acolando@microsoft.com<mailto:acolando@microsoft.com>>, Jeffrey Chester <jeff@democraticmedia.org<mailto:jeff@democraticmedia.org>>, Kathy Joe <K.Joe@esomar.org<mailto:K.Joe@esomar.org>>, Jules Polonetsky <julespol@futureofprivacy.org<mailto:julespol@futureofprivacy.org>>, "public-tracking@w3.org<mailto:public-tracking@w3.org>" <public-tracking@w3.org<mailto:public-tracking@w3.org>>, "adam.phillips@realresearch.co.uk<mailto:adam.phillips@realresearch.co.uk>" <adam.phillips@realresearch.co.uk<mailto:adam.phillips@realresearch.co.uk>>
Subject: Re: Issue 115, exemptions, best practices: Issue 25 and 34

Alan,

You've completely lost me here. I don't understand how writing a  standard for what justifies a site claiming an exemption (or exception) is rewriting or circumventing consumer protection law.  The TCS standard sets out what the obligations are for a site when it receives a DNT enabled header under the W3C standards.

There is consensus around the idea that some collection of data is necessary despite receipt of the DNT signal.  What we're discussing now is what those cases would be (variously called exceptions or exemptions in the message traffic) under the compliance standard.  The first question is: Is a particular form of data collection necessary at all, just because it's done now?  Second question, what steps MUST or SHOULD be taken to protect the users' expression of a desire for privacy if such collection is in fact necessary.

What does that have to do with consumer protection law?

Another question, specifically to which laws are you referring in this context?

Regards,
John


On Feb 13, 2012, at 8:47 AM, Alan Chapell wrote:


They would learn the exemption options offered by each publisher (if any) in a manner that is both clear and in conformance with applicable law. If you and Jeff deem appropriate, you are certainly free to help educate regulators in each jurisdiction regarding how YOU believe their laws should apply to exemptions under the spec and/or issue complaints pointing out where you think certain websites fall short of what you think the standard is or should me.

I'm not sure its appropriate for this group to be re-writing or otherwise circumventing existing consumer protection law or interfering with websites direct' relationships with their visitors in areas where laws are already in existence.


Cheers,

Alan Chapell
Chapell & Associates
917 318 8440


From: Lee Tien <tien@eff.org<mailto:tien@eff.org>>
Date: Mon, 13 Feb 2012 08:33:06 -0800
To: "Amy Colando (LCA)" <acolando@microsoft.com<mailto:acolando@microsoft.com>>
Cc: Alan Chapell <achapell@chapellassociates.com<mailto:achapell@chapellassociates.com>>, Jeffrey Chester <jeff@democraticmedia.org<mailto:jeff@democraticmedia.org>>, Kathy Joe <K.Joe@esomar.org<mailto:K.Joe@esomar.org>>, Jules Polonetsky <julespol@futureofprivacy.org<mailto:julespol@futureofprivacy.org>>, "public-tracking@w3.org<mailto:public-tracking@w3.org>" <public-tracking@w3.org<mailto:public-tracking@w3.org>>, "adam.phillips@realresearch.co.uk<mailto:adam.phillips@realresearch.co.uk>" <adam.phillips@realresearch.co.uk<mailto:adam.phillips@realresearch.co.uk>>
Subject: Re: Issue 115, exemptions, best practices: Issue 25 and 34

Alan and Amy,

What would users learn about what granting an exemption means for their data under your approach?

Lee

Sent from my iPod

On Feb 13, 2012, at 7:44 AM, "Amy Colando (LCA)" <acolando@microsoft.com<mailto:acolando@microsoft.com>> wrote:
Alan, I agree. Some of the text I previously submitted (will have to look up issue number) on user override/consent could be helpful here and would allow for the continued evolution of law/business model/consumer expectations.

Sent from my Windows Phone
________________________________
From: Alan Chapell
Sent: 2/13/2012 6:55 AM
To: Jeffrey Chester; Kathy Joe
Cc: Jules Polonetsky; public-tracking@w3.org<mailto:public-tracking@w3.org>; 'adam.phillips@realresearch.co.uk<mailto:'adam.phillips@realresearch.co.uk>'
Subject: Re: Issue 115, exemptions, best practices: Issue 25 and 34
Jeff -

I'm concerned that you're attempting to set a granular, world-wide standard for disclosures - which may conflict with local law, and create another layer of legal and technical hurdles for small to mid-sized publishers --- most of whom are already in compliance with local consumer protection law. And it would seem to me that a world-wide analysis of how these new rules work across jurisdictions would be a pretty significant undertaking on our end.

Why not simply state that sites seeking exemptions should communicate those requests clearly and in line with consumer protection law(s) in the jurisdiction(s) in which they operate?


Cheers,

Alan Chapell
Chapell & Associates
917 318 8440


From: Jeffrey Chester <jeff@democraticmedia.org<mailto:jeff@democraticmedia.org>>
Date: Mon, 13 Feb 2012 09:12:52 -0500
To: Kathy Joe <K.Joe@esomar.org<mailto:K.Joe@esomar.org>>
Cc: Jules Polonetsky <julespol@futureofprivacy.org<mailto:julespol@futureofprivacy.org>>, Alan Chapell <achapell@chapellassociates.com<mailto:achapell@chapellassociates.com>>, "public-tracking@w3.org<mailto:public-tracking@w3.org>" <public-tracking@w3.org<mailto:public-tracking@w3.org>>, "'adam.phillips@realresearch.co.uk<mailto:'adam.phillips@realresearch.co.uk>'" <adam.phillips@realresearch.co.uk<mailto:adam.phillips@realresearch.co.uk>>
Subject: Re: Issue 115, exemptions, best practices: Issue 25 and 34
Resent-From: <public-tracking@w3.org<mailto:public-tracking@w3.org>>
Resent-Date: Mon, 13 Feb 2012 14:13:46 +0000

For any site seeking an exemption, it should be required to explain clearly upfront how the data is to be collected and used.  This isn't the privacy policy, which few people read and generally fails to explain what goes on.  When a user has DNT:1 on, the bar for the exemption process should be reasonably higher in terms of candid disclosure.  If the research community can live with such candor, given what ever rules are applied by W3C, that's fine.

Happy to discuss this issue further.  I understand the need to use panels, etc., but we should establish a clear digital bright line for the exemption process.






Hi Jeffrey,

The conditions on best practice for sites to manage exemptions include:A site should not use a special landing page that has been designedprincipally to convert a user to agree to permit an exemption. ...A site should not offer rewards and incentives for a user to approve of an exemption.

We appreciate what you are aiming to do but a blanket ban would harm research and make it impossible to ask people to take part in surveys as research panels offer respondents small incentives to participate in research.

In our text for Issue 25 and 34 (see below), we outline how site users might be recruited to a research panel and agree to participate in research that could gather site specific or cross site data. The research site explains what information would be collected, the purpose of the research and provides a mechanism for the user to give their consent. If panel members elect to be tracked, it is with their consent as part of their agreement with the research organisation. They can opt-out at any time.

If a user agrees to the terms of participation having received transparent information in the site's privacy policy they would be compensated for their time and effort with small incentives such as a chance to participate in a prize draw.

Best regards

Kathy Joe

Issue 25: Possible exemption forresearch purposes covered by conditions for outsourcing and issue 34: Exemption for aggregated data
An exemption for research purposes is not required as this is covered under conditions for outsourcing 3.6.1.2.1 where user's consent is required for cross-site tracking or issue 34, exemption for aggregated data.

Description: The first party site has an agreement with a research company to serve an invitation to a user as a result of something they have done on the site, eg visited a travel section. The user has a first party relationship with the site.

Suggestion: Site users'individualised data can be collected with permission, the use of the data cannot be applied in an interactive way and no products or services are offered to respondents on the basis of their individual responses. The researcher and sponsor use theinformation gathered strictly for research purposes. Researchers aggregate research data and when reported, the data is de-identified and cannot be linked to a specific user, computer or device. Any disclosures of identifiable research data must be used strictly for research purposes and with respondent consent.

If the respondent consents to be tracked, the data that is shared with the client is anonymised and aggregated in such a way that no discernable patterns can be attributed to a single individual.

Online surveys are usually interactive with the site user indicating their consent (YES) and not filling them (or pressing the "no" button) is equivalent to NO (meaningful interaction). Ie explicit yes or no.

Example and use cases: A site user is browsing a site. If they fulfil certain criteria, they may be served a pop up invitation which they may choose to click through to accept in which case the research company would then become the first party. The research company may ask to be granted an exception, site-specific or cross-site. The data collected would be aggregated in the results as the research company is not interested in identifying that particular person.

Opt back in for panel members who have DNT- see 4.3.1: how should a tracking reference interact with user over-rides of the tracking compliance, Issue 27: How should the "opt-back in" mechanism be designed?
Description: Research panel member eg Suppress DNT because there is a contractual agreement with the user (ie users have a pre-existing agreement to be tracked)
Panel Members are individual users that have expressed the desire to be part of a research study and/or group as part of a behavioral tracking research program which would need to over-ride the DNT standard. We introduce this to distinguish it from a site-specific exemption which may represent a desire/preference whereas a panel member relationship represents a contractual obligation with the research organization that may cover different domains.



Kathy Joe
Professional Standards & Public Affairs Director
<image002.jpg>

Eurocenter 2, 11th floor
Barbara Strozzilaan 384
1083 HN Amsterdam
The Netherlands
Tel: +31 20 664 2141
Fax: +31 20 664 2922
www.esomar.org<http://www.esomar.org/>


________________________________
From: Jeffrey Chester [mailto:jeff@democraticmedia.org]
Sent: 09 February 2012 01:41
To: Jules Polonetsky
Cc: 'Alan Chapell'; public-tracking@w3.org<mailto:public-tracking@w3.org>
Subject: Re: Issue 115, exemptions, best practices

It's a panel, which is distinct from user impact/expectations.  That is covered by research issue.


On Feb 8, 2012, at 6:24 PM, Jules Polonetsky wrote:

Here is a current example of users being paid for tracking

http://www.huffingtonpost.com/2012/02/08/google-screenwise-project_n_1263128.html?ref=tw

From: AlanChapell [mailto:achapell@chapellassociates.com]
Sent: Wednesday, February 08, 2012 3:59 PM
To: Jeffrey Chester
Cc: public-tracking@w3.org<mailto:public-tracking@w3.org> (public-tracking@w3.org<mailto:public-tracking@w3.org>)
Subject: Re: Issue 115, exemptions, best practices

Jeff -

If we're starting with the premise that any attempt to get a User to agree to an exemption is undermining User intent, we're going to have trouble finding common ground. Are there ANY mechanisms for providing a reward for the User's agreement to an exemption that are acceptable to you? What about providing additional free content inexchange for an exemption? Is that ok?


Cheers,

Alan Chapell
Chapell & Associates
917 318 8440


From: Jeffrey Chester <jeff@democraticmedia.org<mailto:jeff@democraticmedia.org>>
Date: Wed, 08 Feb 2012 15:50:09 -0500
To: Alan Chapell <achapell@chapellassociates.com<mailto:achapell@chapellassociates.com>>
Cc: "public-tracking@w3.org<mailto:public-tracking@w3.org> (public-tracking@w3.org<mailto:public-tracking@w3.org>)" <public-tracking@w3.org<mailto:public-tracking@w3.org>>
Subject: Re: Issue 115, exemptions, best practices

Alan:  As you know, online marketing practices are designed to process users to agree to opt-in and data practices.  What I wrote below are just a few of the practices used by the leading co's and many others.  If a users decision on DNT is not to be undermined, we must ensure that practices are incorporated the permit fair user choice.




Jeffrey Chester
Center for Digital Democracy
1621 Connecticut Ave, NW, Suite 550
Washington, DC 20009
www.democraticmedia.org<http://www.democraticmedia.org/>
www.digitalads.org<http://www.digitalads.org/>
202-986-2220

On Feb 8, 2012, at 3:23 PM, Alan Chapell wrote:


Jeff - In looking at what you've provided here, I'm a bit concerned that you are dictating the terms that a website has with its visitors. Can you share the rationale for each of these - and specifically, what you are trying to guard against?

Alternatively, I'm happy to have a one-off discussion on this topic on Friday early AM with Ninja and Jim.


Cheers,

Alan Chapell
Chapell & Associates
917 318 8440


From: Jeffrey Chester <jeff@democraticmedia.org<mailto:jeff@democraticmedia.org>>
Date: Wed, 08 Feb 2012 14:05:40 -0500
To: "public-tracking@w3.org<mailto:public-tracking@w3.org> (public-tracking@w3.org<mailto:public-tracking@w3.org>)" <public-tracking@w3.org<mailto:public-tracking@w3.org>>
Subject: Issue 115, exemptions, best practices
Resent-From: <public-tracking@w3.org<mailto:public-tracking@w3.org>>
Resent-Date: Wed, 08 Feb 2012 20:08:56 +0000

 https://www.w3.org/2011/tracking-protection/track/issues/115

[I await input from Ninja, Alan and Jim]



Best Practices for sites to manage exemptions should include:

A site must provide accurate information to users on the actual data collection and use practices of the site.  This should include all information used for tracking, targeting, sales of profiles.
A site should not suggest that the ability to access information is dependent on blanket acceptance of a site's data practices.
A site should not use "immersive" multimedia applications designed to foster opt-in as a way to encourage a user agreeing to an exemption.
A site should not use a special landing page that has been designed principally to convert a user to agree to permit an exemption.
A site should not use social media marketing to urge a user to ask their "friends" to approve exemptions.
A site should not offer rewards and incentives for a user to approve of an exemption.




----------
John M. Simpson
Consumer Advocate
Consumer Watchdog
1750 Ocean Park Blvd. ,Suite 200
Santa Monica, CA,90405
Tel: 310-392-7041
Cell: 310-292-1902
www.ConsumerWatchdog.org<http://www.ConsumerWatchdog.org>
john@consumerwatchdog.org<mailto:john@consumerwatchdog.org>