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Re: Draft Text on First Parties and Third Parties (ACTION-34, ISSUE-10, ISSUE-26, ISSUE-88)

From: David Wainberg <dwainberg@appnexus.com>
Date: Fri, 13 Jan 2012 15:43:15 -0500
Message-ID: <4F109763.9000406@appnexus.com>
To: Jonathan Mayer <jmayer@stanford.edu>
CC: Justin Brookman <justin@cdt.org>, "public-tracking@w3.org" <public-tracking@w3.org>
A reasonableness test may be appropriate for certain aspects of the 
American legal system, where we have judges to apply centuries of case 
law and societal norms. It is not appropriate or workable for a 
cutting-edge technical standard, with almost zero precedent, almost 
nothing to draw on as societal norms (which are quickly changing, btw), 
and almost zero clarity about who will be interpreting or enforcing it 
and when. We, as the experts, need to exercise our own expertise to 
translate what we think are reasonable practices into a clear and nearly 
100% objective standard such that all parties who are trying in good 
faith to comply can do so with minimal guessing.

On 1/10/12 5:28 PM, Jonathan Mayer wrote:
> I think we may be talking past each other.  I mean "objective" as that 
> term is used in the American legal system (and many other legal 
> systems).  Hornbook law in a number of areas applies an objective 
> reasonableness test (often anthropomorphized as an "ordinary person," 
> "reasonable person," or "average person").  To the extent there's a 
> little play at the margin, Tom and I adopted the "average user" 
> formulation to clarify that survey data would be adequate to make a 
> determination.
Received on Friday, 13 January 2012 20:43:46 UTC

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