Re: link shorteners etc.

Thank you Walter for pointing out that consumers are not surprised by tracking within a 1st party context.  For the record, this working group also exempted 1st parties from DNT because consumers can choose which 1st parties they want to visit, because 1st parties offer notice about the collection/use of data (i.e. privacy policy or just-in-time notices) and because consumers know who is collecting/using their data.  DNT is a useful signal because it could tell 3rd parties, which are not usually transparent to the consumer, about the consumer's preferences and provide consumers a persistent choice about data collection/use by 3rd parties.

Chris Pedigo
SVP, Government Affairs
Online Publishers Association
(202) 744-2967<tel:(202)%20744-2967>

On Jun 25, 2014, at 3:17 PM, "Walter van Holst" <walter.van.holst@xs4all.nl<mailto:walter.van.holst@xs4all.nl>> wrote:

On 2014-06-25 20:24, David Singer wrote:


That's why I introduced a qualifier of non-obviousness. And yes, it is frustrating that it is unlikely to have a more concrete and tangible test than this staple of law, the man in the Clapham omnibus, or whatever the equivalent is in your local lawyer's vernacular. (Next time I'm in London I must make a pilgrimage to Clapham by bus)
it’s tricky in these click-baiting cases, isn’t it?  what DID the user ‘intend’?

Intent is always a slipper subject and fodder for behavioural psychologists. On this particular topic however, we shouldn't get too academic. The only justification we have for first parties being exempt from DNT is that first parties tend to be a surfing destination, a context so to speak, on their own. From that perspective it would be strange to forbid tracking of user behaviour within that context while the problem we want to address is tracking across contexts. A URL shortener is no such destination and in practice tries to stay out of the way as much as possible without any formal relationship with the user (unlike identity providers) or the destination server (unlike content delivery networks). And it doesn't take a great leap of faith to assume that the average user will not intent to visit bit.ly<http://bit.ly> in any way resembling the intent he or she has to visit facebook.com<http://facebook.com>

And to give an example of where I think intent becomes sufficiently blurred to consider a destination a first party: www.apple.com<http://www.apple.com> being the default homepage for Safari users. Even though a substantial number of visits to apple.com<http://apple.com> is unintentional, it is sufficiently clear that it is Apple and the user can change the default easily.

Regards,

Walter