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Re: Proposed Text for Local Law and Public Purpose

From: Grimmelmann, James <James.Grimmelmann@nyls.edu>
Date: Thu, 25 Oct 2012 22:58:27 +0000
To: "public-tracking@w3.org wg" <public-tracking@w3.org>
Message-ID: <980579DA-37DD-47CA-B399-05D09DE7DB5A@nyls.edu>
This testimony by George Ivie, CEO of the MRC, from a Senate hearing in 2005, may be helpful in understanding the legal status of the MRC:

http://www.gpo.gov/fdsys/pkg/CHRG-109shrg65216/pdf/CHRG-109shrg65216.pdf

Ivie's written testimony begins on page 5:

----

During 1963 and 1964, regulation of the TV and Radio industries including the purpose and accuracy of audience research were the subjects of extensive public hearings. This process culminated with a progress report issued to the 89th Congress of the United States (House Report No. 1212) in January 1966. These hearings were held by a Special Subcommittee on Investigations of the House of Rep- resentatives Committee on Interstate and Foreign Commerce and are commonly referred to as the ‘‘Harris Committee Hearings on Broadcast Ratings.’’

After an extensive investigation and 3 days of testimony, the Committee determined that Industry self-regulation, including independent audits of rating services (such as Nielsen Media Research, Arbitron or MRI) was preferable to government intervention. In its report, the Committee concluded as follows: ‘‘The enactment, at this time, of legislation providing for government regulation of broadcast audience measurement activities is not advisable. The administration of a statute providing for such regulation would place an unnecessary burden on the Federal Government, and it is doubtful that more would be accomplished than can be accomplished by effective industry regulation.’’

The Harris Committee hearings resulted in the formation of an Industry-funded organization to review and accredit audience-rating services called the Broadcast Rating Council (now referred to as the MRC). At that time, the Broadcast Rating Council’s proposed Industry self-regulation procedures were reviewed by the U.S. Justice Department and were found not to be in violation of the antitrust laws. ...

The MRC Accreditation process is completely voluntary and there is no legal or compulsory requirement that a rating service submit to an MRC audit.

----

Based on my investigation of relevant United States law, Ivie's description appears to be legally accurate.  The three most common authorities for federal law -- the U.S. Code, the Code of Federal Regulations, and the Federal Register -- do not contain any references to any legally required role for the MRC.  Ivie's testimony was provided in the context of bills introduced in the Senate (http://thomas.loc.gov/cgi-bin/query/z?c109:S.1372.IS:) and in the House (http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.3298:) that would have made MRC accreditation legally mandatory for television ratings and (in the case of the Senate version) put some legal restrictions on the procedures the MRC could use for accreditation.  Neither bill passed.  

On the basis of the available sources, it appears that the MRC is a private body that promulgates voluntary standards and accredits compliance with them.  Some members of Congress indicated in the 1960s that they would prefer industry self-regulation to legal regulation.  The industries involved created the MRC, which regularly sends information about its activities to Congress and the executive branch (such as in the testimony quoted above).  The MRC has no official legal status; Congress has never passed legislation establishing it, requiring its accreditation, or giving it any advisory capacity.

In the language of the proposed text, the MRC's accreditation rules appear to be "relevant self-regulatory verification requirements."  Whether the DNT self-regulation effort or the MRC self-regulation effort should give way where they might conflict is a policy choice for the group to make.

If I am missing any relevant sources of legal authority, please let me know.

James

--------------------------------------------------
James Grimmelmann   	          Professor of Law
New York Law School                 (212) 431-2864
185 West Broadway       james.grimmelmann@nyls.edu
New York, NY 10013    http://james.grimmelmann.net

On 2012-10-25, at 12:15 PM, Chris Mejia <chris.mejia@iab.net> wrote:

> Ninja,
> 
> MRC exists from an Act of Congress in the U.S., and conducts its important
> work regarding measurement auditing and accreditation, reporting to the
> U.S. Congress.  How would you classify it's requirements then?
> 
> Thanks,
> 
> Chris
> 
> Chris Mejia | Digital Supply Chain Solutions | Ad Technology Group |
> Interactive Advertising Bureau - IAB
> 
> 
> 
> 
> 
> On 10/25/12 7:36 AM, "Ninja Marnau" <nmarnau@datenschutzzentrum.de> wrote:
> 
>> I am concerned about the direction this has taken.
>> 
>> Of course, DNT must not override applicable law. And since this is
>> fundamental, it makes sence to include this as a preamble to all further
>> specifications.
>> 
>> But I do not see a good a reason to group contractual obligations,
>> public purposes (whatever this includes), emergency services, and
>> self-regulatory requirements on the same level as laws and keep them
>> outside of the permitted uses. With all due respect, these have not the
>> same political and democratic legitimacy as laws. They are civil
>> agreements for mostly industry-derived purposes. So why should they be
>> outside of the permitted uses?
>> 
>> Contracts and self-regulatory frameworks may impose obligations which
>> are fundamentally opposed to the final rusult of the compliance spec. If
>> we want to grant exceptions for these purposes, we should discuss the
>> general nature of these requirements as new permitted uses with details
>> for purpose, data minimization, etc.
>> 
>> Ninja
>> 
>> 
>> Am 19.10.2012 19:48, schrieb Jeffrey Chester:
>>> Can someone explain, as I may have missed something.  MRC is working to
>>> better define cross-tracking metrics used for targeting, etc.  In what
>>> context are we discussing such analytics be permitted under the spec?
>>> 
>>> 
>>> 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 Oct 19, 2012, at 1:21 PM, David Wainberg wrote:
>>> 
>>>> MRC is the Media Ratings Council, http://mediaratingcouncil.org/,
>>>> formed out of US Congressional hearings in the 60's.
>>>> 
>>>> The other example that's come up is the UK's Prescription Medicines
>>>> Code of Practice
>>>> Authority, http://www.pmcpa.org.uk/Pages/default.aspx.
>>>> 
>>>> 
>>>> On 10/17/12 5:14 PM, John Simpson wrote:
>>>>> I'm sorry, maybe I missed something -- it certainly wouldn't be the
>>>>> first time -- but what is MRC accreditation?
>>>>> 
>>>>> 
>>>>> ----------
>>>>> John M. Simpson
>>>>> Consumer Advocate
>>>>> Consumer Watchdog
>>>>> 2701 Ocean Park Blvd., Suite 112
>>>>> 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>
>>>>> 
>>>>> On Oct 17, 2012, at 1:46 PM, Amy Colando (LCA) wrote:
>>>>> 
>>>>>> Hi John.
>>>>>> This was intended to address the MRC accreditation scenario that was
>>>>>> previously raised.
>>>>>> *From:*John Simpson [mailto:john@consumerwatchdog.org]
>>>>>> *Sent:*Wednesday, October 17, 2012 1:19 PM
>>>>>> *To:*Amy Colando (LCA)
>>>>>> *Cc:*public-tracking@w3.org <mailto:public-tracking@w3.org>
>>>>>> *Subject:*Re: Proposed Text for Local Law and Public Purpose
>>>>>> Amy,
>>>>>> A clarifying question: Can you please give a use case for what sort
>>>>>> of data would be collected for "relevant self-regulatory
>>>>>> requirements"?
>>>>>> Thanks,
>>>>>> John
>>>>>> ----------
>>>>>> John M. Simpson
>>>>>> Consumer Advocate
>>>>>> Consumer Watchdog
>>>>>> 2701 Ocean Park Blvd., Suite 112
>>>>>> 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>
>>>>>> On Oct 17, 2012, at 8:05 AM, Amy Colando (LCA) wrote:
>>>>>> 
>>>>>> 
>>>>>>    Apologies that I have lost track of Action number, which I will
>>>>>>    look up later.  Many thanks to Vinay, MeMe and David W. for
>>>>>>    assisting with this text.
>>>>>>    *6.1.1.9 Compliance with Local Law and Public Purpose*
>>>>>>    *Normative:*Regardless of DNT signal, information MAY be
>>>>>>    collected, retained, used and shared for complying with
>>>>>>    applicable laws, regulations, legal obligations and other public
>>>>>>    purposes, including, but not limited to, intellectual property
>>>>>>    protection, delivery of emergency services, and relevant
>>>>>>    self-regulatory verification requirements.
>>>>>>    *Non-normative: *This specification does not purport to require
>>>>>>    parties to breach existing contractual obligations.  At the same
>>>>>>    time, it is expected that parties implementing this
>>>>>>    specification should not enter into new contractual obligations
>>>>>>    that have the effect of circumventing specification
>>>>>>    requirements. This specification recognizes that there are
>>>>>>    legitimate self-regulatory regimes that both protect consumer
>>>>>>    interests and govern certain data practices, and the
>>>>>>    specification does not intend to conflict with these regimes.
>>>>>>    However, parties should whenever possible adhere to the letter
>>>>>>    and spirit of this specification, and should not look to such
>>>>>>    regimes as merely a means to circumvent the specification.
>>>>>> 
>>>>> 
>>>> 
>>> 
>> 
>> -- 
>> 
>> Ninja Marnau
>> mail: NMarnau@datenschutzzentrum.de - http://www.datenschutzzentrum.de
>> Telefon: +49 431/988-1285, Fax +49 431/988-1223
>> Unabhaengiges Landeszentrum fuer Datenschutz Schleswig-Holstein
>> Independent Centre for Privacy Protection Schleswig-Holstein
>> 
>> 
> 
> 
Received on Thursday, 25 October 2012 22:59:11 UTC

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