Do Not Track Makes Tracks to Congress

Advertising Law

It’s ba-ack: The Do Not Track bill has returned to Congress, this time sponsored by Senator Josh Hawley (R-Mo.).

As proposed, the Do Not Track Act would prohibit “first parties”—defined to include websites that users intentionally visit—from collecting or sharing data for the purpose of ad targeting when users have activated the “do not track” feature. Further, “third parties” (such as ad tech companies) would be banned from collecting data from consumers who have activated do not track, with a limited exception for data analytics.

Companies would also be prohibited from collecting data “beyond what is indispensable to the companies’ online services” as well as from discriminating against those users who have activated the do-not-track feature.

Currently, consumers can ask not to be tracked via their browsers, but the request is rarely granted, as it lacks the force of law, Sen. Hawley said.

The Federal Trade Commission (FTC) would implement and regulate the do-not-track system, designate a do-not-track signal, and create a “simple program” available on its public website that can be downloaded to any common connected device and sent to every site or service to indicate a consumer’s desire not to be tracked. Fines of $1,000 per person per day for willful or reckless violations, with a minimum of $100,000, would be established by the bill.

“Big tech companies collect incredible amounts of deeply personal, private data from people without giving them the option to meaningfully consent,” Sen. Hawley said in a statement about the proposed legislation. “They have gotten incredibly rich by employing creepy surveillance tactics on their users, but too often the extent of this data extraction is only known after a tech company irresponsibly handles the data and leaks it all over the internet. The American people didn’t sign up for this, so I’m introducing this legislation to finally give them control over their personal information online.”

The do-not-track movement originally gained traction in 2010, when the FTC backed the idea in a staff report on consumer privacy. Not long afterward, Rep. Jackie Speier (D-Calif.) introduced the Do Not Track Me Online Act, and some browsers began offering a do-not-track option.

But without repercussions for failing to honor consumer requests not to be tracked, and because there is disagreement about exactly how the feature should function (the World Wide Web Consortium Working Group on Tracking Preference Expression spent years working on a do-not-track program without success), support waned and the movement petered out.

To read the Do Not Track Act, click here.

Why it matters: Could the Do Not Track Act find success in the current Congress? Privacy has been a popular topic for federal lawmakers in recent months, from facial recognition technology to an expansion of the Children’s Online Privacy Protection Act, and even the ad industry has joined the push for a federal privacy bill. Whether Sen. Hawley’s bill can overcome party divisions to achieve passage remains to be seen, however.