The Dissent: Why One FTC Commissioner Thinks Do Not Track Is Off-Track

[Commentary] The media loves "do not track." In recent days, there has been a flood of news articles reporting that the Federal Trade Commission does, too. Some of those articles have even implied that the commission has endorsed particular do-not-track mechanisms. To some extent, that may be the fault of the FTC's own press releases. But in any event, this implication is wrong. The concept of do not track has not been endorsed by the commission or, in my judgment, even properly vetted yet. In actuality, in a preliminary staff report issued in December 2010, the FTC proposed a new privacy framework and suggested the implementation of do not track. The commission voted to issue the preliminary FTC staff report for the sole purpose of soliciting public comment on these proposals. Indeed, far from endorsing the staff's do-not-track proposal, one other commissioner has called it premature. I also have serious questions about the various do-not-track proposals. In my concurring statement to the preliminary staff report, I said I would support a do-not-track mechanism if it were "technically feasible." By that I meant that it needed to have a number of attributes that had not yet been demonstrated. That is still true, in my judgment.

First, there are a number of consequences if a consumer adopts a do-not-track mechanism.

Second, another issue is potential consumer confusion about the terminology "do not track."

Third, I am concerned that the recent rush to adopt untested do-not-track mechanisms might be based, in part, on a reluctance to take on the harder task of examining more-nuanced methods of providing consumers with choice.

Finally, the implementation of do-not-track mechanisms must not jeopardize competition by injuring potential competitors.