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Re: ISSUE-45 ACTION-246: draft proposal regarding making a public compliance commitment

From: David Wainberg <david@networkadvertising.org>
Date: Thu, 06 Sep 2012 08:41:47 -0400
Message-ID: <50489A0B.90104@networkadvertising.org>
To: Justin Brookman <jbrookman@cdt.org>
CC: public-tracking@w3.org
Hi Justin,

On 9/5/12 10:00 PM, Justin Brookman wrote:
> David, I do not mean to ascribe any devious motivations to your 
> proposal.  I'm just pointing out that substantively it cannot work.
>
> Your argument on complexity and confusion does not make sense.  You 
> say that the current spec may not match all users' expectations.  That 
> may well be the case, but I fail to see how varying standards of 
> uncertain rigor are less complex and confusing than one good faith, 
> transparent, multistakeholder effort at determining a reasonable and 
> workable definition of tracking.
Lot's of assumptions here: "uncertain rigor", "transparent", 
"reasonable", "workable." But that aside, you're missing my point. My 
point was not about whether the W3C DNT standard will be reasonable or 
not, it's that users will have limited understanding of what it really 
means. Any do not track standard faces the problem of defining "track" 
in a way that makes sense. And any standard faces the problem of 
misconceptions created by UIs and media. Users will not understand the 
details. I do not believe it is a problem to have a small delta between 
varying definitions of DNT for varying business models and other 
circumstances, as long as they're all reasonable.
> I'm sorry, but your "in the ballpark" standard does not pass the laugh 
> test and anyway is not reflected anywhere in your proposal (though I 
> would enjoy drafting an FTC complaint with the subject heading "B. 
> Ain't No #%$@$! Ballpark, Neither").  I agree on the need for 
> flexibility, but the cost to the integrity of the Do Not Track 
> standard is far too high.
And that brings me to my ballpark comment (which you are 
misunderstanding and then belittling -- thanks). My point here was that 
a reasonable DNT is an art not a science. There is no single right 
answer. Rather, there is a ballpark of what might be considered reasonable.
> As no one has tried to address the points I made earlier today, I see 
> no need to reiterate them now.  This proposal saps the value of DNT to 
> the companies engaging in this process, and offers consumers no 
> assurance that their DNT settings will be meaningfully honored.
I absolutely disagree with this. This proposal does not sap the value, 
it adds value. And it has no impact whatsoever on assurances that DNT 
settings will be honored. The current model offers nothing in this way 
either. Assurances will come from elsewhere.

>     ------------------------------------------------------------------------
>     *From:* David Wainberg [mailto:david@networkadvertising.org]
>     *To:* Shane Wiley [mailto:wileys@yahoo-inc.com]
>     *Cc:* Aleecia M. McDonald [mailto:aleecia@aleecia.com],
>     public-tracking@w3.org (public-tracking@w3.org)
>     [mailto:public-tracking@w3.org]
>     *Sent:* Wed, 05 Sep 2012 19:22:49 -0500
>     *Subject:* Re: ISSUE-45 ACTION-246: draft proposal regarding
>     making a public compliance commitment
>
>     Hi All,
>
>     There are lots of assumptions and accusations flying around in
>     this discussion which are not helpful.  Can we please back up for
>     a second?  This proposal arose out of a working group call two
>     weeks ago, during which I pointed out the potential legal landmine
>     introduced by the notion of making the WKL in and of itself a
>     public commitment of compliance with the W3C DNT standard. This
>     led to a discussion of the diversity of actors that will be
>     attempting to implement DNT, and the fact that there will
>     necessarily be relevant distinctions in how they implement. I took
>     an action item to propose an approach that better accommodates
>     this diversity without creating a legal landmine. This is all this
>     is -- an idea for dealing with the two issues that were identified
>     on the call.  We are -- and continue to be - working on this in
>     good faith and nothing has changed about anyone's commitment to
>     anything.
>
>     Notwithstanding concerns about complexity and user confusion
>     (which I'll address), it is my personal opinion, as I've already
>     stated, that the current proposed language will inhibit wide
>     adoption of the full spec. I think we're all agreed that the
>     desirable outcome is to have something reasonable that will be
>     widely used.
>
>     Regarding complexity and user confusion, I believe that users may
>     not understand the W3C DNT spec any better than they understand
>     privacy policies. Lawyers and engineers are going to have a
>     difficult time determining exactly what the spec says can and
>     cannot be done. In almost all cases, I believe that users'
>     understanding will come from what's presented in the UA's UI and
>     in the media.  It does concern me that we have almost zero control
>     over either, and I expect that given where the spec is going,
>     there will be a considerable delta between users' ideas about what
>     DNT means and what DNT actually means. I fear this may be largely
>     due to the fact that we're stuck with the term "track," which we
>     are unable to define in a way that is consistent with the WG's
>     policy aims and the common understanding of the meaning of the word.
>
>     Given that, the TPWG is making choices on users' behalf based on
>     what the TPWG thinks should be reasonable, regardless of what
>     common understanding is. So let's be clear that what's important
>     is that in any case DNT means something in the ballpark of what a
>     reasonable user would expect. This can be accomplished in many
>     ways, and as long as it is reasonable, it's not going to make
>     things substantially more confusing. The confusion will stem from
>     the way the choice is represented to users.
>
>     So, this is the problem we have to solve. We need a standard that
>     is reasonable for everyone, including the businesses that will be
>     affected by it; that is relatively consistent with common
>     understanding and expectation; that is not unnecessarily rigid and
>     does not become calcified; and that will be widely adopted. My
>     proposal was intended with those aims in mind.
>
>     -David
>
>     On 9/5/12 12:06 PM, Shane Wiley wrote:
>>
>>     Aleecia,
>>
>>     I believe this proposal and the strong support within IRC during
>>     the working group call would officially declare this as NOT a
>>     dead end.  It would be helpful to gauge the working group as I
>>     believe you’ll find considerable support for a compliance flag
>>     within the well-known location resource.
>>
>>     - Shane
>>
>>     *From:*Aleecia M. McDonald [mailto:aleecia@aleecia.com]
>>     *Sent:* Wednesday, September 05, 2012 9:00 AM
>>     *To:* public-tracking@w3.org (public-tracking@w3.org)
>>     *Subject:* Re: ISSUE-45 ACTION-246: draft proposal regarding
>>     making a public compliance commitment
>>
>>     Of note: in Seattle, we discussed the possibility of having
>>     multiple codes to indicate different flavors of DNT.
>>     Specifically, I raised it as a suggestion. The WG members soundly
>>     rejected, in favor of coming to a common single understanding of
>>     DNT. We have already declared this a dead end.
>>
>>     One can imagine a world with, say, a DAA approach and a W3C
>>     approach, without needing a new flag sent with every response.
>>     Just pick different semantics. It will be very clear which is
>>     what, without the overhead. If that is the problem you are trying
>>     to solve, I think it is already solved without needing any work here.
>>
>>     If we take this just as being about different regions, I'm not
>>     sure what a USA or NLD designation entails. And I'm not sure how
>>     to convey that to users. I think I do not understand what you
>>     have in mind yet. I look forward to hearing more about how you
>>     think that could work.
>>
>>     Aleecia
>>
>>     On Sep 4, 2012, at 5:51 PM, David Wainberg
>>     <david@networkadvertising.org
>>     <mailto:david@networkadvertising.org>> wrote:
>>
>>
>>
>>     This fulfills ACTION-246
>>     (http://www.w3.org/2011/tracking-protection/track/actions/246),
>>     which relates to ISSUE-45
>>     (http://www.w3.org/2011/tracking-protection/track/issues/45).
>>
>>     There are problems with the current proposed approach to issue
>>     45. The current version does not accommodate implementation
>>     distinctions based on, for example, geography/jurisdiction,
>>     business model, or technology. It also creates unnecessary and
>>     counter-productive legal landmines that will spur companies to
>>     avoid implementing the full spec. We can provide for making legal
>>     commitments without this unwanted result.
>>
>>     I think the first point should be obvious. There will be a
>>     tremendous diversity of organizations, business models, and
>>     technologies to which DNT may be applied, either voluntarily or
>>     compulsorily, under a diversity of regulatory regimes. The spec
>>     needs to accommodate this diversity.
>>
>>     The more important point is that, if we make the mistake of tying
>>     the server response (the header or WKL) to a broad,
>>     legally-binding representation that goes well beyond the specific
>>     meanings of the responses, end-users will lose out because
>>     companies will avoid implementing the response mechanisms. The
>>     reality is that companies who may otherwise be eager to implement
>>     DNT will avoid making representations that could be construed in
>>     overly broad ways, that may be ambiguous, or that otherwise are
>>     potentially misaligned with what they do. Instead, companies will
>>     seek to make representations that unambiguously describe their
>>     practices. We should facilitate this, not make it difficult.
>>
>>     Note that I am definitely not saying that companies should be
>>     able to act contrary to what they represent in the response
>>     mechanism(s). That, however, is not a problem we need to solve.
>>     Companies will be held to account for any such misrepresentations
>>     anyway, regardless of what the spec says. And if the available
>>     responses are sufficiently precise and adequately defined, I
>>     think companies will implement them.
>>
>>     This proposal solves both problems. It will provide for the
>>     enforceable statement that the working group is aiming for, but
>>     it will also allow needed flexibility for servers operating under
>>     various regulatory regimes, and would do so especially for
>>     servers operating under multiple regulatory regimes. And, most
>>     important, it would create a mechanism whereby companies can
>>     clearly and accurately say what they do and then do what they say.
>>
>>     The proposal is the following:
>>
>>       * /The compliance spec remains silent on the matter/
>>       * /Add a required "compliance" field to the tracking status
>>         resource in the TPE, where the value indicates the compliance
>>         regime under which the server is honoring the DNT signal./
>>       * /The value of the compliance field is a 3-5 letter token
>>         indicating the applicable regulatory regime. Allowed tokens
>>         could include 3-letter country codes, e.g. USA, GBR, NLD, or
>>         designations for voluntary regimes, e.g. W3C, DAA, NAI,
>>         IABEU. My understanding is that an organization like IANA can
>>         manage a list of tokens in order to prevent collisions./
>>
>
Received on Thursday, 6 September 2012 12:43:16 UTC

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