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Re: Today's call: summary on user agent compliance

From: Tamir Israel <tisrael@cippic.ca>
Date: Sat, 09 Jun 2012 20:49:51 -0400
Message-ID: <4FD3EF2F.7050405@cippic.ca>
To: ifette@google.com
CC: Jonathan Mayer <jmayer@stanford.edu>, Shane Wiley <wileys@yahoo-inc.com>, Jeffrey Chester <jeff@democraticmedia.org>, Ninja Marnau <nmarnau@datenschutzzentrum.de>, Rigo Wenning <rigo@w3.org>, Bjoern Hoehrmann <derhoermi@gmx.net>, David Singer <singer@apple.com>, "public-tracking@w3.org (public-tracking@w3.org)" <public-tracking@w3.org>
On 6/9/2012 8:17 PM, Ian Fette (イアンフェッティ) wrote:
> I'm not sure where we're going here. There are many jurisdictions 
> around the world with many requirements. Some of them may be helped by 
> DNT in some cases, some may not be. 

Well, the problem for the existing standard is that it does not 
accommodate any regimes where explicit consent is operative. Implicit 
consent is a valid form of consent, valid in many jurisdictions, so this 
is not a quirk of Canadian law.

> DNT is not the only way to meet those requirements. If we can make DNT 
> work for these requirements without making DNT overly 
> complex/cumbersome to implement, then I think it's worth considering 
> specific proposals, but that's a case by case basis depending on what 
> we're being asked to take on. 

As things stand, DNT actually is the only method being devised to 
address what is admittedly a technically challenging activity for 
seeking using consent -- online tracking by third parties who have had 
no interaction with the user.

> I don't find this abstract argument particularly helpful to be honest. 
> (And frankly I don't think anyone is expecting that someone who 
> ignores DNT would be helped by DNT, so I don't even know why you're 
> bringing that up. No one has claimed that here to my knowledge.)
> If there's specific actionable things for us to consider, let's 
> consider them, but I feel like we're talking about progressively less 
> actionable things.

The problem arises where there are disagreements over whether someone is 
'ignoring' DNT. The spec allows servers to reject seemingly valid DNT-1 
signals just because they question (on subjective grounds) the validity 
of the intent underlying the signal. One easy solution to this is to 
write into the spec that servers must not question seemingly valid 
DNT-1s. Another is to change the rule that UA's 'MUST NOT' set DNT-1 by 
default into a 'SHOULD NOT'. This takes away a lot of potential 
justification for servers to ignore potentially valid DNT-1s. There's 
other possible solutions as well. I personally think we would be better 
off exploring potential solutions, rather than discussing whether it's 
worthwhile exploring them at all.

> Bringing us back to the point, for a moment. Some people have 
> expressed that they may reject DNT from some user agents. I haven't 
> heard anyone claim that "Receiving a DNT:1 and rejecting that DNT:1 is 
> functionally equivalent to having received DNT:0 from the user." DNT 
> is fundamentally an agreement between two parties -- if the parties 
> don't agree on the terms (server agrees by affirmatively acknowledging 
> the client's DNT request), there is no agreement, and the issue is 
> moot. If you have regulatory requirements to satisfy, you still have 
> to satisfy them, without the help of DNT.

So if you're saying that any jurisdiction in which implicit consent is 
the operating requirement for online tracking is not important enough 
for the W3C to bother with, I suppose that is one possible outcome. But 
I do believe Internet standards should try to accommodate various 
legitimate legal regimes and norms.

> -Ian

Best regards,

> On Sat, Jun 9, 2012 at 5:04 PM, Jonathan Mayer <jmayer@stanford.edu 
> <mailto:jmayer@stanford.edu>> wrote:
>     Some background on Canadian privacy law may be helpful.  The
>     comprehensive federal privacy statute (PIPEDA) does allow for
>     opt-out choice mechanisms in some cases.  But an opt-out mechanism
>     is only compliant if it meets thresholds for transparency, ease of
>     use, and other requirements.
>     At the W3C workshop in Princeton, a representative of the Office
>     of the Privacy Commissioner voiced that the current
>     self-regulatory opt outs fall short.  The OPC issued a new
>     position paper this past week; it does not directly address the
>     legality of current practices (owing to a prudential limit on
>     advisory opinions), but in a plain reading the NAI/DAA/IAB Canada
>     programs are quite deficient.
>     In sum: online advertising companies may currently operate in
>     violation of Canadian law.  Do Not Track could bring them into
>     compliance—but it certainly won't if companies ignore the most
>     popular browser's implementation.
>     Jonathan
>     On Saturday, June 9, 2012 at 12:49 AM, Ian Fette (イアンフェッ
>     ティ) wrote:
>>     On Fri, Jun 8, 2012 at 7:56 PM, Tamir Israel <tisrael@cippic.ca
>>     <mailto:tisrael@cippic.ca>> wrote:
>>>     Hi Ian,
>>>     On 6/8/2012 10:03 PM, Ian Fette (イアンフェッティ) wrote:
>>>>     Tamir and others,
>>>>     I don't think the point is to say "a server merely notifies the
>>>>     user they will ignore their DNT-1 signal, that this is
>>>>     sufficient to gain user consent for server tracking.".
>>>>     Many jurisdictions don't require explicit opt-in consent for
>>>>     "server tracking". Take the US for example. In this case, as
>>>>     long as we're not promising something that we fail to deliver,
>>>>     there is no problem here.
>>>>     I think you are getting hung up on the case where, in some
>>>>     countries depending on what finalized legislation comes out,
>>>>     there might be a requirement to obtain explicit opt-in consent.
>>>>     I agree with you that the mere act of rejecting the user's
>>>>     DNT:1 signal is not explicit opt-in consent in that context,
>>>>     and the website would probably have to take further steps to
>>>>     obtain that explicit opt-in consent. But that does not need to
>>>>     be the problem of this working group or specification.
>>>     The issue I'm trying to address is a scenario where opt-out
>>>     consent is required. Functionally, the Canadian system operates
>>>     much like the US in practice (servers are seemingly free to
>>>     track without asking [as long as there is a readily available
>>>     mechanism for opting out]). Typically, U.S.-based businesses
>>>     find this to be a benefit, since their Canadian implementations
>>>     can match their US implementation (given our physical proximity).
>>>     The similarities in regime break down, however, where a server
>>>     rejects a DNT-1 (because it was set by default), and there is no
>>>     alternate mechanism left for the user to opt-out. As the server
>>>     can no longer rely on implicit/opt-out consent in this case,
>>>     presumably they can no longer track.
>>     I'm not sure I follow you. Surely, Canadian users can use the
>>     Internet today without hitting this legal dilemma. If DNT is not
>>     available as a negotiation mechanism, either because the site
>>     doesn't support it at all or chooses not to support it for a
>>     given set of user agents, then you are in the same situation that
>>     you are in today. Whatever mechanism are in place today are not
>>     going to cease to exist with the rollout of DNT. So, I would
>>     presume you would solve this situation the same way you solve it
>>     today.
>>>         The point of DNT is to allow a user to express a preference
>>>         on tracking. The point of DNT is not to solve the EU
>>>         regulatory debacle, or any other country-specific
>>>         regulations. If it can be useful in that manner, then great,
>>>         but I continue to question whether we should allow this
>>>         working group to get continually railroaded into trying to
>>>         solve country-specific regulatory problems.
>>         The group may well decide to leave it to regulators in
>>         various countries to decide how to solve their own specific
>>         regulatory problems around the spec, but I think it is fully
>>         legitimate to at least attempt to address these here.
>>     I agree it's worth understanding what it would take to address
>>     them and try to do so if it's at zero to no cost, however lately
>>     it seems like it has become the primary focus and adding great
>>     complications, as opposed to an add-on to be done if it's
>>     straightforward.
>>>     Best regards,
>>>     Tamir
>>>>     On Fri, Jun 8, 2012 at 10:59 AM, Tamir Israel
>>>>     <tisrael@cippic.ca <mailto:tisrael@cippic.ca>> wrote:
>>>>>     Hi Shane,
>>>>>     I want to reiterate what I said earlier on -- I understand
>>>>>     there is already an agreement on defaults in the group, and it
>>>>>     is not my intention to question that.
>>>>>     However, in this context, I'm not clear that where a server
>>>>>     merely notifies the user they will ignore their DNT-1 signal,
>>>>>     that this is sufficient to gain user consent for server tracking.
>>>>>     Let me explain. The basis for tracking under the current spec
>>>>>     is that the server is gaining implicit, opt-out consent to
>>>>>     track the user. The 'opt-out' consent is mediated through the
>>>>>     UA's browser mechanism. Now, if the server is saying 'I will
>>>>>     ignore your DNT-1 because I deem it non-compliant', there is
>>>>>     no longer an opt-out consent mechanism in place for the server
>>>>>     to rely on.
>>>>>     Best,
>>>>>     Tamir
>>>>>     On 6/8/2012 11:29 AM, Shane Wiley wrote:
>>>>>>     Tamir,
>>>>>>     While I agree it does add a degree of uncertainty initially,
>>>>>>     as long as the outcome is completely transparent to the user
>>>>>>     then I believe the appropriate outcome has been reached.
>>>>>>     We are attempting to resolve this in the specification by
>>>>>>     appropriately signaling to a user that they will not honor
>>>>>>     the DNT signal from a specific UA.
>>>>>>     - Shane
>>>>>>     -----Original Message-----
>>>>>>     From: Tamir Israel [mailto:tisrael@cippic.ca
>>>>>>     <mailto:tisrael@cippic.ca>]
>>>>>>     Sent: Friday, June 08, 2012 8:11 AM
>>>>>>     To: Shane Wiley
>>>>>>     Cc: Jeffrey Chester; Ninja Marnau; Rigo Wenning;
>>>>>>     ifette@google.com <mailto:ifette@google.com>; Bjoern
>>>>>>     Hoehrmann; David Singer; public-tracking@w3.org
>>>>>>     <mailto:public-tracking@w3.org> (public-tracking@w3.org
>>>>>>     <mailto:public-tracking@w3.org>)
>>>>>>     Subject: Re: Today's call: summary on user agent compliance
>>>>>>     Hi Shane,
>>>>>>     I suppose the question is what the objective here is.
>>>>>>     Allowing any entity to unilaterally question the validity of
>>>>>>     a facially
>>>>>>     valid signal introduces a great degree of uncertainty into
>>>>>>     the equation,
>>>>>>     and since this is an anticipated source of disagreement and
>>>>>>     confusion,
>>>>>>     it might be better to explore addressing it within the spec.
>>>>>>     On 6/8/2012 10:16 AM, Shane Wiley wrote:
>>>>>>>     Jeff and Ninja,
>>>>>>>     I respectfully disagree and believe any standard that has
>>>>>>>     outlined what a valid signal should consist of (in our case,
>>>>>>>     that a user has activated this signal directly) then any
>>>>>>>     signal not meeting the standard is itself non-compliant and
>>>>>>>     therefore should allow Servers to appropriately respond to
>>>>>>>     users that their current UA is non-compliant and therefore
>>>>>>>     will not be honored - again, hopefully with options for
>>>>>>>     valid UAs the user can access their free services with.  If
>>>>>>>     the user doesn't feel comfortable with this outcome WHICH IS
>>>>>>>     COMPLETELY TRANSPARENT, they can decide to keep consuming
>>>>>>>     those free services with DNT not being honored, not access
>>>>>>>     the free content from that particular site, or switch to a
>>>>>>>     compliant UA so their DNT signal is honored while
>>>>>>>     interacting with that site.  With transparent and clear
>>>>>>>     messaging to the user, this places the power within the
>>>>>>>     user's hands to decide how best to move forward.  I believe
>>>>>>>     this is much better than the user being left in the dark, or
>>>>>>>     alternately no publishers supporting DNT since they are
>>>>>>>     forced to honor non-compliant signals.
>>>>>>>     Predictability - The user is clearly messaged in all cases -
>>>>>>>     so outcomes are completely "predictable".
>>>>>>     I'm not clear that there is any obligation for the user to be
>>>>>>     clearly
>>>>>>     messaged here. In any case, how would that play out? User:
>>>>>>     don't track
>>>>>>     me; UA: server does not acknowledge. What's the next step here?
>>>>>>>     Only for "uncompliant" UAs?  - Yes, but this is subjective
>>>>>>>     choice by the Server and they must defend their position.
>>>>>>>      Since messaging is transparent, consumers can quickly raise
>>>>>>>     concerns if they feel a UA is being ignored incorrectly.
>>>>>>>     Who decides wether a UA is "uncompliant"?  - The Server does.
>>>>>>     You are correct that ultimately, this could be referred to a
>>>>>>     regulator
>>>>>>     if the customer disagrees with the server's decision.
>>>>>>>     Liability issues - disagree on your assessment of liability
>>>>>>>     in this case as the claim is directly tied to a voluntary
>>>>>>>     code and therefore the only legal enforcement is that the
>>>>>>>     Server must follow through on what it says it will (contract).
>>>>>>>     Hindering privacy-by-default - It is FAR too early in the
>>>>>>>     process to attempt to quote draft regulations that will go
>>>>>>>     through tremendous change over the next two years prior to
>>>>>>>     becoming a regulation in force.
>>>>>>>     - Shane
>>>>>>>     -----Original Message-----
>>>>>>>     From: Jeffrey Chester [mailto:jeff@democraticmedia.org
>>>>>>>     <mailto:jeff@democraticmedia.org>]
>>>>>>>     Sent: Friday, June 08, 2012 3:52 AM
>>>>>>>     To: Ninja Marnau
>>>>>>>     Cc: Rigo Wenning; ifette@google.com
>>>>>>>     <mailto:ifette@google.com>; Bjoern Hoehrmann; David Singer;
>>>>>>>     public-tracking@w3.org <mailto:public-tracking@w3.org>
>>>>>>>     (public-tracking@w3.org <mailto:public-tracking@w3.org>)
>>>>>>>     Subject: Re: Today's call: summary on user agent compliance
>>>>>>>     I support what Ninja says below, and the concerns Jonathan
>>>>>>>     raises.  There shouldn't be "cherry-picking" allowed in the
>>>>>>>     spec.  When sites receive DNT, they should honor it.  The
>>>>>>>     W3C should not develop a policy that permits the over-riding
>>>>>>>     of requests/intent of global Internet users.
>>>>>>>     The key issue for us to address is the need to limit
>>>>>>>     collection and retention.  I hope we can discuss and build
>>>>>>>     support for a consensus on the proposal sent the other day
>>>>>>>     by EFF/Mozilla and Jonathan.  Without meaningful collection
>>>>>>>     and retention policy, we risk not having a spec that can
>>>>>>>     receive the support from many stakeholders (esp civil
>>>>>>>     society).  That is critical to the fate of the privacy and
>>>>>>>     digital consumer protection debates, esp. both sides of the
>>>>>>>     Atlantic.
>>>>>>>     Finally, I want to add that in my view and fairly quickly a
>>>>>>>     site that doesn't honor DNT will not be considered "brand
>>>>>>>     safe."  Responsible advertisers and brands concerned about
>>>>>>>     their reputation will need to respect a robust DNT.  They
>>>>>>>     will have to add DNT to the blacklist/whitelist systems in
>>>>>>>     place.  It behooves us to continue to advance the process of
>>>>>>>     ensuring monetization and privacy can thrive together in the
>>>>>>>     digital economy.
>>>>>>>     Jeff
>>>>>>>     On Jun 8, 2012, at 5:26 AM, Ninja Marnau wrote:
>>>>>>>>     We are discussing two different issues here.
>>>>>>>>     First is, I support that servers should give the users a
>>>>>>>>     clear answer wether their DNT request is honored. There
>>>>>>>>     should be an option to answer NACK.
>>>>>>>>     Second is, a company claiming "We will honor DNT when it's
>>>>>>>>     coming from the following user agents" or "We will honor
>>>>>>>>     DNT from all user agents except for the following" (I am
>>>>>>>>     quoting Ian's example here) is honest - and I appreciate
>>>>>>>>     that. But whether it is "compliant" to the DNT
>>>>>>>>     recommendation or not, is up to us as a working group. It
>>>>>>>>     is our task to discuss whether we want the spec to allow
>>>>>>>>     this cherry-picking. (Don't get me wrong, companies can
>>>>>>>>     stll do so. But will they be able to claim DNT compliance?).
>>>>>>>>     I oppose this. I think the spec should state that when you
>>>>>>>>     receive a valid signal, no matter from what UA, you have to
>>>>>>>>     honor it in order to claim DNT compliance.
>>>>>>>>     There are several reasons for this:
>>>>>>>>     1) predictability
>>>>>>>>     David raised this point and I agree: "Defining that "I'll
>>>>>>>>     stop tracking unless I don't feel like it" as *compliant*
>>>>>>>>     makes it basically unpredictable what will happen."
>>>>>>>>     2) only for "uncompliant" UAs?
>>>>>>>>     If we open the spec to cherry-picking. Will it stop at
>>>>>>>>     "uncompliant"? Or will the spec just stay silent or
>>>>>>>>     explicitly allow for other motivations? Patent lawsuits,
>>>>>>>>     harming competitors, just feeling like it - for painting a
>>>>>>>>     very black picture.
>>>>>>>>     I don't support this as being considered DNT compliant.
>>>>>>>>     3) Who decides wether a UA is "uncompliant"?
>>>>>>>>     As long as there is no judgement by a competent authority,
>>>>>>>>     this is a very critical statement.
>>>>>>>>     4) liability issues
>>>>>>>>     If the spec allows to NACK the DNT requests of
>>>>>>>>     "uncompliant" UAs, and I site claims to "honor DNT from all
>>>>>>>>     user agents except for the following ..." it makes a
>>>>>>>>     legally relevant statement about these UAs. Which may lead
>>>>>>>>     to liability and claims for damages by these UAs if the
>>>>>>>>     judgement is wrong.
>>>>>>>>     If the spec is more open ->   issue 2.
>>>>>>>>     5) hindering privacy-by-default
>>>>>>>>     The proposed Data Protection Regulation of the EC
>>>>>>>>     explicitly asks for privacy by default. (Art. 23)
>>>>>>>>     Ninja
>>>>>>>>     Am 08.06.2012 10:25, schrieb Rigo Wenning:
>>>>>>>>>     On Thursday 07 June 2012 18:25:27 Ian Fette wrote:
>>>>>>>>>>     A site is already under no obligation to conform to DNT.
>>>>>>>>>>     Would you
>>>>>>>>>>     rather have the user be clear that their request is being
>>>>>>>>>>     ignored, or left to wonder?
>>>>>>>>>     Precisely my point! Thanks Ian
>>>>>>>>>     Rigo
>>>>>>>>     -- 
>>>>>>>>     Ninja Marnau
>>>>>>>>     mail: NMarnau@datenschutzzentrum.de
>>>>>>>>     <mailto:NMarnau@datenschutzzentrum.de> -
>>>>>>>>     http://www.datenschutzzentrum.de
>>>>>>>>     Telefon: +49 431/988-1285 <tel:%2B49%20431%2F988-1285>, Fax
>>>>>>>>     +49 431/988-1223 <tel:%2B49%20431%2F988-1223>
>>>>>>>>     Unabhaengiges Landeszentrum fuer Datenschutz Schleswig-Holstein
>>>>>>>>     Independent Centre for Privacy Protection Schleswig-Holstein
Received on Sunday, 10 June 2012 00:51:20 UTC

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