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Re: Proposed Text for Local Law and Public Purpose

From: Chris Mejia <chris.mejia@iab.net>
Date: Thu, 25 Oct 2012 18:49:17 +0000
To: Rigo Wenning <rigo@w3.org>, "public-tracking@w3.org" <public-tracking@w3.org>
CC: David Wainberg <david@networkadvertising.org>, Kimon Zorbas <vp@iabeurope.eu>, Walter van Holst <walter.van.holst@xs4all.nl>, "Thomas Roessler - W3C" <tlr@w3.org>, Mike Zaneis <mike@iab.net>
Message-ID: <CCAEF099.26688%chris.mejia@iab.net>
Rigo,

As the attorney for the W3C, I always see you making eloquent arguments
and statements that almost always come from a European perspective.  While
I appreciate that you are European, may I humbly ask, is there a U.S.
attorney for the W3C that can bring some balance to this process/working
group by offering a well-researched and well-understood U.S. perspective
to the working group, in addition to the European perspective you always
bring?  OR, since the W3C represents itself as an "international standards
setting organization", and you are the sole W3C attorney participating in
the working group, may I humbly ask that you please do as thorough a job
researching and presenting U.S. (and other country's) concerns as you do
European concerns around DNT?  Your voice in this forum comes with the
weight and influence of your office/position at W3C, and international
organization as I understand it.  As I denote a distinct bias towards the
European perspective in your comments, statements and assertions to this
group, I'd only ask for fair-play; that perspectives other than European
be presented by the W3C staff.  For example, perhaps you could offer your
legal expertise to the group by contacting the MRC, conducting unbiased
primary research on their mandate, their standards, their motivation and
their process, and then present the results to this group?  Respectfully,
I think it's a fair request.

There is one other option that has been repeatedly brought forward by me
and others: regional/jurisdictional compliance specifications for DNT. At
the end of the day, we are going to keep running our heads into the same
wall:  that wall is, every jurisdiction has its own unique and sovereign
practices and requirements that should be respected. And I believe,
Europeans should do what's good for Europeans, and we should do what's
good for United Statesmen.  And Mexicans should do what's right for
Mexicans.  And so onŠ  If you have a valid concern on the merits of this
suggestion, I have not heard/seen it (apologies in advance if you have
already provided it and I simply missed it).  Short of pointing me to you
argument against this approach, could you please tell me why this would be
a bad idea?


Respectfully,

Chris Mejia | Digital Supply Chain Solutions | Ad Technology Group |
Interactive Advertising Bureau - IAB





On 10/25/12 12:54 PM, "Rigo Wenning" <rigo@w3.org> wrote:

>David, 
>
>I think Walter is an invited expert and offered his opinion on why
>he thinks we should also take the EU system into account. I think
>Walter gave a pretty accurate view on current EU feelings as I also
>saw them in the hearing of the EU parliament on the new regulation.
>There is much emphasis that privacy is a human right and that it
>should not under all circumstances be trumped by commercial
>considerations. I think you should read his statement like a report
>rather than an opinion.
>
>And his EU comments are important for me as I think that global
>considerations are important. I think we are much closer to
>usefulness of DNT in Europe than many believe. And this is a big
>thing if you consider the current UK solution that is not as nice.
>So killing the European solution for an alleged impossibility to
>comply with MRC raises heat that we should take out again.
>
>Note further that IMHO he is not threatening in any way. I was at
>the OECD this week and last week. There are discussions about
>transborder data flow and how to achieve that. Many OECD countries
>have appropriate protections in place and now urge to create a level
>playing field to avoid a race to the bottom. And there are serious
>voices questioning the transborder data flow to countries not having
>the right protection level. Again, this is rather a report. I do not
>have the intention to say: "see you should do this or that". And I
>see DNT as an opportunity. Because it can't be mandated by W3C
>anyway it can only be an opportunity and never a threat. The threat
>is elsewhere. 
>
>Apart from that I concur to Kimon. Measures are done anonymously and
>this is part of the innovation challenge. Then outreach is out of
>the way. This is why I talked about "transition". In the sixties we
>had nice cars, but consumption was 7mpg. Now we still have nice cars
>and consumption is 60mpg and they are even faster. Better outreach
>measures with less personal data. We can talk about how far we get
>with Version 1 if there is a will to innovate. But just saying: "DNT
>will not change my business" would misunderstand the commitments and
>the unease in the market and between the regulators.
>
>Rigo
>
>On Wednesday 24 October 2012 18:14:22 David Wainberg wrote:
>> Rob, Rigo, Ninja, what are your thoughts?
>> 
>> On 10/24/12 6:12 PM, David Wainberg wrote:
>> > Hi Kimon,
>> > 
>> > I would not suggest that MRC is or should be relevant in Europe.
>> > My questions to other Europeans in the group is whether they
>> > share Walter's position, quoted below, regarding U.S. law and
>> > the goals for the DNT standard.
>> > 
>> > -David
>> > 
>> > On 10/24/12 11:32 AM, Kimon Zorbas wrote:
>> >> David,
>> >> 
>> >> I am struggling to understand why MRC should be relevant in
>> >> Europe? (I am a bit lost in this debate ­ it seems to me that
>> >> MRC certifies products to conduct measurement - in the US). If
>> >> companies operate in Europe, they need to comply with our
>> >> strict laws.
>> >> 
>> >> Audience measurement in Europe is to my knowledge conducted via
>> >> anonymous data. Safe Harbor wouldn't apply to such data. If
>> >> audience data is transferred to outside the EEA (and adequate
>> >> countries), then there is no issue (with anonymous data sets).
>> >> If personal data is collected, then you could benefit of the
>> >> Safe Harbor regime as a US based company. Not sure that has
>> >> anything to do with MRC (being only a certification body, if I
>> >> understand correctly).
>> >> 
>> >> Kind regards,
>> >> Kimon
>> >> 
>> >> From: David Wainberg <david@networkadvertising.org
>> >> <mailto:david@networkadvertising.org>>
>> >> Date: Wednesday 24 October 2012 17:15
>> >> To: Walter van Holst <walter.van.holst@xs4all.nl
>> >> <mailto:walter.van.holst@xs4all.nl>>, "public-tracking@w3.org
>> >> <mailto:public-tracking@w3.org>" <public-tracking@w3.org
>> >> <mailto:public-tracking@w3.org>>
>> >> Subject: Re: Proposed Text for Local Law and Public Purpose
>> >> Resent-From: <public-tracking@w3.org
>> >> <mailto:public-tracking@w3.org>> Resent-Date: Wednesday 24
>> >> October 2012 17:15
>> >> 
>> >> Is this the view of other Europeans participating in this
>> >> working group?>>
>> >> On 10/24/12 10:39 AM, Walter van Holst wrote:
>> >>             Actually, from a EU perspective this standard as a
>> >>             whole
>> >>             is unnecessary
>> >>             because most business practices, at least the one
>> >>             that
>> >>             are publicly
>> >>             known, in this field are in violation of EU-law
>> >>             already.
>> >>         
>> >>         So why do we keep talking about it in terms of EU law?
>> >>         Why do we
>> >>         continue to have proposals aimed at suiting EU
>> >>         requirements?
>> >>     
>> >>     Well, I am going to be offensive again and maybe even
>> >>     patronising, but
>> >>     the US legal context for privacy discussions is not quite
>> >>     up to
>> >>     par with
>> >>     the rest of the industrialised world. For all its defects,
>> >>     the
>> >>     European
>> >>     legal framework embodies a coherent framework of concepts
>> >>     on this
>> >>     subject matter. Which sadly the USA does not have. So,
>> >>     apart from
>> >>     my own
>> >>     geographical bias by virtue of being Dutch, other than in
>> >>     terms of consent it is difficult to discuss this in
>> >>     outside the terms of EU law.
>> >>     Not to mention that similar frameworks have been adopted by
>> >>     Canada, Australia, South-Africa, Japan, Korea and Brazil
>> >>     as well as that India
>> >>     is in the process of moving in a similar direction.
>> >>     
>> >>        I will be
>> >>        
>> >>         happy if we can once and for all determine that this
>> >>         
>> >>             Having a
>> >>             mechanism for consent in the form of DNT is much
>> >>             more
>> >>             significant in the
>> >>             US context than in the EU context. The fact that
>> >>             various
>> >>             EU parties are
>> >>             sitting at the table in this process is in itself a
>> >>             sign
>> >>             that the lack
>> >>             of appetite by the US to import EU concepts (unlike
>> >>             most
>> >>             other
>> >>             democracies on the planet) has been noticed in the
>> >>             EU.
>> >>         
>> >>         Are you saying that EU participation in this forum is
>> >>         precisely for the
>> >>         purpose of trying to impose EU concepts on US
>> >>         companies?
>> >>     
>> >>     No, it is an acknowledgement that EU law is not applicable
>> >>     in the USA and that merely leaning back basking in an
>> >>     ill-conceived dream of EU-superiority in this regard is
>> >>     not going to be helpful at all if large
>> >>     parts of the relevant industries are (for now) out of scope
>> >>     of EU
>> >>     law.
>> >>     Therefore it is still useful to participate in a
>> >>     self-regulatory
>> >>     approach, despite it being unnecessary in the EU-context.
>> >>     
>> >>         But to my previous question, if the EU can impose these
>> >>         concepts
>> >>         extra-territorially through regulation then why try to
>> >>         do it
>> >>         through
>> >>         this DNT process?
>> >>     
>> >>     Well, why get to what you want by asking nicely if you can
>> >>     do it by holding a gun to someone's head? The former is
>> >>     rather more constructive,
>> >>     one would think.
>> >>     
>> >>     Regards,
>> >>     
>> >>        Walter
>
Received on Thursday, 25 October 2012 18:50:21 UTC

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