Re: ACTION-295: Should v. Must

On 10/19/12 10:43 PM, David Wainberg wrote:
> Walter,
> This is a very good analysis. I have two lingering concerns, however.
> First, companies will have absolutely no guidance, precedent, etc. to
> inform them what is a legitimate "pressing need" or a "corner case" that
> justifies their decisions, so no way to evaluate the risk of making a
> decision.

I do not think that evaluation of this risk can be done by lawyers on
their own, unless they are well-versed in W3C and/or IETF standards in
which this terminology occurs. The precedents are mostly non-legal in
nature and I am sure others in this group are much better qualified than
I am to provide examples of exceptions to SHOULD rules in other

Having said that, I would strongly advice any client against deviations
that are purely based on their business model and/or managerial approach
to the DNT issue. Such deviations from SHOULDs are typically justified
by constraints in computational power, bandwidth and storage as well as
legacy issues. Think mobile devices. Or legacy load-balancing equipment.

> Second, the damage is done long before a case gets to court, if it even
> does. A newspaper article or an investigation made public will do
> serious harm to a company if the accusation is that they made the wrong
> decision. Vindication in court, if it ever comes, may be almost
> worthless. Even vindication in the press isn't worth much after the
> damage has already been done. This will make companies quite inhibited
> about being innovative, even in cases where it was not the intent of the
> working group to limit their particular case.

I would agree that a SHOULD is likely to be treated as pretty close to a
MUST. I would also agree that any standard, in any context, always puts
constraints on innovation. It often also leads to innovation itself.
Take for example the effects of environmental regulations on the
affected industries, there is a whole body of evidence that they were an
incentive to innovate and reinvigorate complete swaths of industries
that were screaming murder at the time they were being imposed.

I would like to remind everyone of Commissioner Kroes' recent speech
which started with this memorable part:

"Online privacy and online business need to go hand in hand. Privacy is
a fundamental right; if your idea doesn't work with that, it won't work
at all."



Received on Sunday, 21 October 2012 13:54:22 UTC