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Re: action-231, issue-153 requirements on other software that sets DNT headers

From: Dobbs, Brooks <Brooks.Dobbs@kbmg.com>
Date: Wed, 22 Aug 2012 13:41:06 +0000
To: "Grimmelmann, James" <James.Grimmelmann@nyls.edu>, "Roy T. Fielding" <fielding@gbiv.com>
CC: Tamir Israel <tisrael@cippic.ca>, "public-tracking@w3.org (public-tracking@w3.org)" <public-tracking@w3.org>
Message-ID: <2B40EB3A3384EB4CB812241DDDC41D8702E5BA@KBMEXMBXPR01.kbm1.loc>
James and all,

I think we are moving down the road of making some very dangerous
assumptions here.  We are getting in the habit of referring to sending the
signal DNT: 1 as "a choice for privacy".  This is a highly subjective
statement and not necessarily true.

Choosing DNT: 1 is a signal to an origin server that it must follow the
rules as established by the compliance doc with all the resulting
treatments to the UA.  This may result in initial outcomes that many users
will see as privacy enhancing.  However, it may also channel UAs to
different website payment schemes (non-ad supported) or move people
towards advertising tools run by parties with a PII relationship to the
user who are able to get out of band exceptions; neither would likely to
be called "a choice for privacy".  This is not hypothetical at all.  If a
website needs N million dollars a year to provide content and service and
that funding is cut to a third by DNT, they will seek one of those two
roads, neither of which makes a lot of sense to call "a choice for
privacy".  

Let's keep this conversation where it should be.  A "preference" means a
user's desire for his/her transaction to be processed by the recipient
server in accordance with the rules established for that signal by the
compliance doc.  If an individual user, with individual use patterns, at
any given time finds that to be "a choice for privacy" then so it is - for
her.  I doubt that the person asked for a credit card or to identify
himself for an out of band exception to view a previously ad supported
site will be as cavalier with the word choice.

-Brooks    


-- 

Brooks Dobbs, CIPP | Chief Privacy Officer | KBM Group | Part of the
Wunderman Network
(Tel) 678 580 2683 | (Mob) 678 492 1662 | kbmg.com
brooks.dobbs@kbmg.com



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On 8/21/12 10:43 PM, "Grimmelmann, James" <James.Grimmelmann@nyls.edu>
wrote:

>I disagree; this is far from a "clear" case.  Here is the coming IE 10
>setup process as described by Microsoft (cutting and pasting a bit):
>
>----
>In the Windows 8 set-up experience, customers will be asked to choose
>between two ways of configuring a number of settings: ³Express Settings²
>or ³Customize.²
>
>Customers will receive prominent notice that their selection of Express
>Settings turns DNT ³on.² In addition, by using the Customize approach,
>users will be able to independently turn ³on² and ³off² a number of
>settings, including the setting for the DNT signal.  A ³Learn More² link
>with detailed information about each recommended setting will help
>customers decide whether to select Express Settings or Customize.
>----
>
>And here is the language from the August 14 TPE draft:
>
>----
>The basic principle is that a tracking preference expression is only
>transmitted when it reflects a deliberate choice by the user. ...
>
>A user agent must have a default tracking preference of unset (not
>enabled) unless a specific tracking preference is implied by the decision
>to use that agent. ...
>
>We do not specify how tracking preference choices are offered to the user
>or how the preference is enabled: each implementation is responsible for
>determining the user experience by which a tracking preference is
>enabled. For example, a user might select a check-box in their user
>agent's configuration, install an extension or add-on that is
>specifically designed to add a tracking preference expression, or make a
>choice for privacy that then implicitly includes a tracking preference
>(e.g., Privacy settings: high). The user-agent might ask the user for
>their preference during startup, perhaps on first use or after an update
>adds the tracking protection feature.
>----
>
>There is a plausible argument that selecting Express Settings after being
>given prominent notice that this will turn DNT on is both a "deliberate
>choice by the user" and "a choice for privacy that then implicitly
>includes a tracking preference" that the user-agent "ask[s] the user for
>... during startup."  And because the user chooses to use Express
>Settings, there is also a plausible argument that IE 10 will "have a
>default tracking preference of unset."
>
>There are also some plausible counterarguments.  For example, it is
>possible that Microsoft's explanation of the effect of choosing Express
>Settings will not be clear and prominent enough to make selecting it a
>"choice for privacy."  It is also unclear what the default state of the
>DNT checkbox will be in "Customize."
>
>I'm sure that this is not what many others on the list *intend* the TPE
>draft to mean, but based on what the draft currently *says*, IE 10's
>compliance is open to serious debate.
>
>James
>
>--------------------------------------------------
>James Grimmelmann              Professor of Law
>New York Law School                 (212) 431-2864
>185 West Broadway 
>james.grimmelmann@nyls.edu<mailto:james.grimmelmann@nyls.edu>
>New York, NY 10013    http://james.grimmelmann.net
>
>On Aug 21, 2012, at 9:35 PM, Roy T. Fielding
><fielding@gbiv.com<mailto:fielding@gbiv.com>> wrote:
>
>On Aug 21, 2012, at 6:01 PM, Tamir Israel wrote:
>
>Roy your apache example, as I understood it, applies in clear cases of
>non-compliance. I don't think there's ever going to be such a clear case
>as in reality implementations are going to be quite varied and browser
>sniffing of the kind you're suggesting will lead to browser wars. Case in
>point:
>
>http://blogs.technet.com/b/microsoft_on_the_issues/archive/2012/08/07/do-n
>ot-track-in-the-windows-8-set-up-experience.aspx
>
>Which is a clear case of non-compliance.  If pre-selecting an
>option in a dialog box is not sufficient to gain prior consent,
>then it certainly isn't sufficient to satisfy:
>
>  "The basic principle is that a tracking preference expression
>   is only transmitted when it reflects a deliberate choice by
>   the user. In the absence of user choice, there is no tracking
>   preference expressed."
>
>Browser wars is not a problem I have in HTTP, because of the
>Apache principle regarding open standards.  If you want to change
>the standard, feel free to make proposals to that effect within
>the process defined by this WG.  Please do not continue this
>argument about honoring deliberately broken UAs; you are wasting
>our time, as this WG has even less ability to change Apache's principles
>than it does to impose implementation of a voluntary standard.
>
>....Roy
>
>
Received on Wednesday, 22 August 2012 13:41:56 UTC

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