RE: Formal Objection to the Decision Regarding A “Tri-­part choice requirement for users agents.”


Perhaps it would help your case if you could elaborate on how the requirement would be enforced?


Date: Fri, 5 Oct 2012 08:27:12 -0700
Subject: RE: Formal Objection to the Decision Regarding A “Tri-­part choice requirement for users agents.”

tri-part_objection_finalFred, The objection does not mandate specific UI treatment – only specific options.  The form, approach, font, color, supporting text, and in generally every other conceivable form of an actual UI is not specified.  Users do not individually have much say in how a UA is assembled (some flexibility per browser in this area) only which browser they select and which available options they interact with (of the ones offered to them).  So attempting to say a requirement on what options are displayed as suggesting a specific UI is inaccurate.  Requiring that users are provided fair balance in choice is NOT a private matter (that’s an odd argument) and is absolutely appropriate to provide all options.  Until you can provide a true, tangible HARM to users, I’d also suggest attempting to angle this as a “safety” choice as also inaccurate. - Shane From: Fred Andrews [] 
Sent: Friday, October 05, 2012 2:52 AM
To: David Wainberg;
Subject: RE: Formal Objection to the Decision Regarding A “Tri-­part choice requirement for users agents.” Dear David,

The selection and operation of the UA is often a choice of the user.

Even if the proposal attempted to place requirements on the UA UI it would be impossible to enforce without invading user privacy because their choice of UA and UI is a private matter.

You could try to examine the User-Agent header, but if you start using this to discriminate against users based on a lack of compliance then the user can just spoof this header.

You could try to use a JS API to probe the user agent, but users may rightfully consider this an invasion of their privacy and block it.

Even if a UA did honestly communicate the User-Agent header, if you try and dictate the UI then the UA can just add a meta option to allow the user to switch between your desired UI and their preferred UI.

You just don't control the UA so the Chair probably made the correct call.

If you want to give users more choice then publish your own UA or extension that does what you want and pitch it to users - and let the market sort out the matter.  Perhaps you could work on making the DNT UI customizable via extensions so it would be easy to give users choice?  Some browser developers may be sympathetic to such a proposal, especially if you could help fund the work.

I dispute the goal of making all options equally accessible.  The options have very different safety levels for users and it is only common sense that a device should default to the safe option.

Use case: Parents may well want to lock off an option panel that allows children to change browser safety settings.

If you feel there is an abuse of market share then you have my sympathy and support for offering users choice of UA and UI, but attempting to dictate the UA UI design via this forum is probably not going to help you because it is probably not possible for this forum to dictate the UA UI.

FredDate: Thu, 4 Oct 2012 12:21:11 -0400
Subject: Formal Objection to the Decision Regarding A “Tri-­part choice requirement for users agents.”

Dear Director, TPWG Chairs, and all participants in the TPWG,

In response to the Chairs' decision on the tri-part choice requirement for user agents, we are submitting the following formal objection. Formal Objection to the TPWG Chairs’ Decision Regarding A “Tri-­part choice requirement for users agents.” For the reasons set out below, we object to the Chairs' decision with regard to a "Tri-­‐part choice requirement for user agents," (see and respectfully request the Director and the Chairs to reconsider and instead adopt Option B, the tri-­‐part requirement, as the decision of the working group. In sum, Option B is the only option that meets the group’s aims and the requirements of the charter, because it goes to ensuring users have an adequate range of choices available to them. 
The decision followed a working group poll in which two options were presented, and working group participants were asked to state objections to either of the options. Option A was "silence"; User Agent's (UAs) as currently defined in the draft specification would not be required in the specification "to provide a DNT:0 option that is equally easy to turn on as DNT:1." Option B, on the other hand, would create mandatory guidelines requiring that a "user agent MUST require equal effort to configure their agent to each of a minimum of three choices for a Do Not Track preference: 1, 0 or unset." 
This is a crucial issue for the specification, as it goes to the fundamental problem of whether a DNT signal sent by a UA, and received by a server, reflects an informed, deliberate choice by the user. It has implications for the credibility and ultimate adoption rate of the specification. 
The Co-­‐Chairs' decision misunderstands or mischaracterizes the objections to Option A, and the strength thereof, and implements a decision that is inconsistent with the aims and charter of the TPWG, and that is not conducive to the success of the specification. 
The TPWG’s mission includes “improv[ing] user privacy and user control by defining mechanisms for expressing user preferences around Web tracking,” and the group’s charter calls for a “simple machine-­‐readable preference expression mechanism.” The goal of simplicity and the infeasibility of complex user interfaces necessitate a limiting of users’ choice. This is natural. However, in limiting choices, we limit information, and run the risk that a user’s choices are inadequately informed. Moreover, with the ability to limit users’ choices often comes centralized control that can be misused to influence markets. This has been the case in the past in many markets, including telephone service, web browsers, and automobiles. Recall Henry Ford’s famous quote: “Any customer can have a car painted any color that he wants so long as it is black.” So, therefore, the problem becomes one of degree. What is the minimum availability of choices that is needed to ensure users have a real choice beyond just “black” or nothing? The proposed option, Option B, addresses this issue in a minimally prescriptive way that allows user agents extremely broad latitude to craft user interfaces, while meeting simple guidelines around the relative availability of alternative DNT choices. Option A leaves the issue without guidance, and entirely to the whims of user agent designers who, for one reason or another, may not care to give the user much control. Therefore, the Chairs erred in deciding to adopt Option A over Option B. 
The Co-­‐Chairs' decision was organized according to "themes" that were elucidated from participants' comments. Although we disagree with the framing of the "themes," for clarity we follow their format and address themes individually. 
A. Support of EU and other Compliance Regimes
Under their response regarding this theme, the Co-­‐Chairs rightly point out that legal compliance is not a goal of the TPWG. However, the Co-­‐Chairs missed the point of various participants' comments regarding consent: that ensuring users are able to express an informed and meaningful choice is a legitimate and necessary goal, and not just a matter of legal compliance. The TPWG has already discussed and is near consensus on the view that DNT must reflect users' choice and that, for example, DNT on by default would generally not be reflective of a user's choice. One pending option in the TCS document provides explicit guidelines for achieving explicit and informed consent from a user. Option A does not provide UA's adequate guidance regarding what is required to achieve users' explicit and informed consent. Only Option B provides such guidance. 
B. Incomplete specification of user agents
On this point – that without specification UA's "may implement DNT in undesirable ways" – the Co-­‐Chairs' rejected objections to Option A (and support of Option B) under the rationale that the TPWG charter does not allow specification of UI. Under Option B, however, does not specify UI, but would provide guidelines that define user experience, as allowed under the charter. The Option says only that the three states must require equal effort; it does not specify how this is to be achieved, or otherwise in what form the choices must be presented. It does not even require that they be presented together. Rather, it requires that each be accessible with equal effort. This guideline is intended to ensure the user's choice rises to the level of informed consent required by the standard. This intent was raised in the objections to Option A, but disregarded, or misinterpreted by the Co-­‐Chairs in making their decision. 
D. Ability to validate against the spec
Here the Co-­‐Chairs side with comments suggesting Option B would add untestable elements to the specification. If testability is a requirement for elements of the specification, then much of the specification fails. Not once yet has testability been raised as a requirement for any element of the TCS, and no such requirement exists in the charter. Although testability is an obvious need for true technical specifications, as the W3C ordinarily produces, testability under many elements of the TCS document is virtually hopeless. For example, elements of the specification rely on such vague and untestable standards as "infer with a high probability," "confidence," "reasonably necessary," "reasonable efforts," and so on. To apply a testability standard to only UI guidance, but not other crucial elements of the specification would be an untenable double standard. 
E. Ability to express actual user preference
Here, in rejecting the argument that the three state requirement is essential to ensuring fully informed consent, the Co-­‐Chairs reframe the issue, stating that "the input received does not argue why a 3-­‐state UI is the only way to ensure that users can express preferences." The Co-­‐Chairs go on to state that they "do not conclude that all user agents must offer all preferences for all users as the only way" for users to find ways to express their preferences. The decision misses the point. First, Option B does not require a 3-­‐state UI, but only that UA's "require equal effort to configure their agent to each of a minimum of three choices." But more importantly, Option A, silence, does not ensure that users have the opportunity to fully understand their choices and make an informed choice. It is not a matter of users finding ways to express their preferences. It is a matter of ensuring that users have the opportunity to express adequately informed choices. 
F. Simplicity, Innovation and Differentiation for User Agents
In agreeing with objections to Option B, the chairs state that "specifying a user interface is out of scope by our charter." This mischaracterizes Option B. The charter states that "while guidelines that define the user experience or user interface may be useful (and within scope), the Working Group will not specify the exact presentation to the user." Option B does not specify the exact presentation, but rather states guidelines that must be met to ensure users have adequate access to the full range of choices available under the standard. This is far from specifying UI, and leaves considerable latitude to UA makes to determine how the guidelines will be met. 
G. Unbiased Representation
The Chairs dismiss concerns about bias and fairness on the part of UA's, saying they "have not seen evidence as to why requiring all three options with equal effort satisfies the goal of fairness." It is self-­‐evident that in many cases companies with competitive interests at stake, and that stand to benefit from widespread DNT usage, also control users' experience of the Internet. Requiring that UA's satisfy guidelines with regard to equitable availability of all DNT options is a minimally prescriptive means to try to limit the extent to which competitive interests are not at play in UA’s influencing users' DNT choices, and that therefore a DNT signal reflects a truly informed choice.

For the reasons above, and in the interest of producing a specification that is credible, fair, and that will garner widespread adoption, we respectfully request the Director and the TPWG Chairs to reconsider this decision with regard to a tri-­part choice requirement for user agents. We thank you for your consideration. 


Jason Bier, ValueClick
Alan Chapell, Chapell & Associates 
Brooks Dobbs, KBMG
Marc Groman, NAI
Dan Jaffe, ANA
Peter Kosmala, 4A’s
Lou Mastria, DAA
Dick O’Brien, 4A’s
Clark Rector, AAF
Brendan Riordan-­‐Butterworth, IAB 
Rachel Nyswander Thomas, DMA 
David Wainberg, NAI
Shane Wiley, Yahoo! 
Jeff Wilson, AOL
Kimon Zorbas, IAB Europe             

Received on Friday, 5 October 2012 17:10:04 UTC