Turn Inc.'s TPS Last Call Comments

Dear Co-Chairs,

Turn's comments to the Tracking Compliance and Scope draft ("TPS") are substantively identical to those put Turn put forward for the Tracking Preference Expression draft "TPE").[1]  We restate each and every concern here by reference. Because the TPS is based on the same flawed premises as the TPE, the TPS is anti-competitive, unfair and deceptive, and anti-privacy. We note that many others share Turn's concerns and highlight a few here:

US Senators
In a letter to the W3C, U.S. Senators Markey, Barton, and Franken state, in part: "The proposed "Do Not Track" standard applies differently to "first parties," companies that directly face consumers, than to "third parties," those that facilitate the advertisements displayed online. Under the standard, first parties are free to continue tracking online activity even if a user activates the "Do Not Track" signal and can share that information among its[sic] many affiliates. Third parties, on the other hand, must respect user preference and stop tracking. In effect, this distinction gives certain companies, including those that operate as both first and third party businesses, an exemption from what could serve as an important consumer protection and an unfair advantage over companies that better honor consumer rights and expectations."[2]

European Commission's Article 29 Data Protection Working Party
The Article 29 Data Protection Working Party's comments state, in part: ".... the limitation of DNT to only third party tracking presents another crucial obstacle, where DNT would not suffice to achieve compliance with the EU legal framework."[3]

Electronic Frontier Foundation ("EFF")
The Electronic Frontier Foundation's comments state, in part: "... the attempt to define first parties, and define them as inherently excluded, was a mistake.  ... We think [the EFF's DNT approach] of making DNT first/third party neutral is much cleaner. It eliminates any advantage / disadvantage that accrues to companies based on the size of their corporate family trees, removes the perceived advantages of third parties that are also major first parties..."[4]

Turn urges the TPWG to abandon the anti-competitive distinction between first parties and third parties, even when such first parties act as third parties. We call on the TPWG to re-engage all stakeholders to define a Do Not Track standard that encourages competition regardless of business model and forthrightly addresses consumers' expectations of privacy and control when they set the DNT:1 flag.

Respectfully submitted,

Max P. Ochoa, CIPP/US
General Counsel and Chief Privacy Officer
Turn Inc.

Endnotes:
[1] https://lists.w3.org/Archives/Public/public-tracking-comments/2014Jun/0012.html

[2] https://lists.w3.org/Archives/Public/public-tracking-comments/2015Oct/0004.html

[3] https://lists.w3.org/Archives/Public/public-tracking-comments/2015Oct/0003.html

[4] https://lists.w3.org/Archives/Public/public-tracking/2015Oct/0004.html