Re: issue-205

Mike

Explicit consent is not required by most EU countries under current law; and the term unambiguous consent is in proposed amendments to legislation. We should not be Codifying the standard against unfinished legislation.

Vinay

Sent from my phone

On Jun 30, 2013, at 1:04 PM, "Mike O'Neill" <michael.oneill@baycloud.com<mailto:michael.oneill@baycloud.com>> wrote:

Hi Shane,

That text was in the TPE and I thought it was better, as did Justin because he put the same phrase in his change proposal, which this is. My main issue was to get the reference to explicit consent in EU law put back in.

I agree the “implied” adjective is subject to misinterpretation, especially when it has been used to avoid the necessity for obtaining consent.

How about:

A user agent MUST have a default tracking preference of unset (not enabled) unless a another specific tracking preference is clearly and unambiguously indicated to the user prior to installation, or is required to comply with applicable laws, regulations and judicial processes.

It would be good  also to get input from Justin.

Mike

From: Shane Wiley [mailto:wileys@yahoo-inc.com]
Sent: 30 June 2013 17:01
To: Mike O'Neill; public-tracking@w3.org<mailto:public-tracking@w3.org>
Cc: 'Justin Brookman'; Nicholas Doty
Subject: RE: issue-205

Mike,

The term “implied by the decision” seems far too open to interpretation.  All 3rd parties could argue users have agreed to ignore DNT since it’s implied they’ve consented by visiting the web page they’re on (I don’t agree with that stance but use it demonstrate how easy it is to apply the term “implied” in a given context).

- Shane

NOTE – on vacation this week so replies will be delayed.

From: Mike O'Neill [mailto:michael.oneill@baycloud.com]
Sent: Saturday, June 29, 2013 1:05 AM
To: public-tracking@w3.org<mailto:public-tracking@w3.org>
Cc: 'Justin Brookman'; Nicholas Doty
Subject: issue-205

I added the phrase about local law to Justin’s text on the wiki, as per my change submission.


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, or another default preference is required to comply with applicable laws, regulations and judicial processes.

Justification.

The original wording in the TPE, allowing the choice of a privacy oriented user-agent, was better so why lose it, and it is possible that rights-based jurisdictions like the EU with an assumed right to privacy may require user-agents be supplied with DNT set by default.