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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 15:47:08 +0000
To: "Grimmelmann, James" <James.Grimmelmann@nyls.edu>
CC: "Roy T. Fielding" <fielding@gbiv.com>, Tamir Israel <tisrael@cippic.ca>, "public-tracking@w3.org (public-tracking@w3.org)" <public-tracking@w3.org>
Message-ID: <2B40EB3A3384EB4CB812241DDDC41D8702F374@KBMEXMBXPR01.kbm1.loc>
James,

If we start by agreeing that it is highly contested and subjective that
DNT is good or bad for privacy, let's fix the spec right now and remove
"choice for privacy" and rephrase in terms of "tracking" (which of course
begs that we define it).


"Choice for Privacy" is a subjective conclusion based on a highly
uncertain set of assumptions which immediately imbues DNT: 1 with a
default position of preference.  This is a technical specification where a
user may demonstrate his preference relating to how a server processes his
transaction and should not make assumptions about the eventualities of
such decision past what the spec says.  There is no inherent right or
wrong choice.  There are consequences either way and the user is free to
make an informed choice.

We should not be attaching value judgements to that choice or assuming an
outcome past what the spec dictates.  If the spec dictates 3rd parties
can't log IP address given DNT: 1, it is fair to seek a preference using
that description, but as there is a high degree of certainty that ad based
sites will seek to replace missing revenue through other mechanisms not
covered by, or excepted by DNT, it is a misrepresentation to go further.

-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 8/22/12 10:40 AM, "Grimmelmann, James" <James.Grimmelmann@nyls.edu>
wrote:

>Brooks, 
>
>The language "choice for privacy" has been in the TPE working drafts
>since last year.  It is there as a way to describe certain kinds of user
>actions in configuring a user-agent that can reasonably be understood to
>include a "deliberate choice by the user" about a tracking preference.
>This reflects the real-world fact that many users who choose to enable
>the DNT: 1 header will do so out of a desire for privacy.  Thus, a user
>agent or extension could offer a more general-purpose privacy setting
>"that then implicitly includes a tracking preference."
>
>Don't worry: I'm not (and I don't think anyone else is) asking the group
>to take an official stance on whether widespread DNT use will be good for
>privacy or bad for privacy.  That's highly contested and highly
>subjective.  The language shows up in the context of "Determining User
>Preference" and that's how I'm reading it: to address the question of
>whether IE 10's DNT: 1 signals will reflect deliberate choices by users
>about tracking.
>
>James
>
>On Aug 22, 2012, at 9:41 AM, "Dobbs, Brooks" <Brooks.Dobbs@kbmg.com>
>wrote:
>
>> 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
>> 
>> 
>> 
>> This email ¡© including attachments ¡© may contain confidential
>>information.
>> If you are not the intended recipient,
>> do not copy, distribute or act on it. Instead, notify the sender
>> immediately and delete the message.
>> 
>> 
>> 
>> 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: ©øExpress
>>>Settings©÷
>>> or ©øCustomize.©÷
>>> 
>>> Customers will receive prominent notice that their selection of Express
>>> Settings turns DNT ©øon.©÷ In addition, by using the Customize approach,
>>> users will be able to independently turn ©øon©÷ and ©øoff©÷ a number of
>>> settings, including the setting for the DNT signal.  A ©øLearn More©÷
>>>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 15:47:59 UTC

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