FCC Refuses To Force Websites To Adhere To ‘Do Not Track,’ And That’s A Good Thing

If you’ve followed the saga of “Do Not Track,” you know it began with good intentions, labored under squabbling and marketing industry sabotage, and is now seen by some as too little too late in the face of far more sophisticated new snoopvertising technologies. Knowing that many companies will never honor Do Not Track requests voluntarily, Consumer Watchdog had filed a petition (pdf) with the FCC to “initiate a rulemaking proceeding requiring ‘edge providers’ (like Google, Facebook, YouTube, Pandora, Netflix, and LinkedIn) to honor ‘Do Not Track’ Requests from consumers.”

In short, the faux consumer advocacy group (which is famous for taking extreme positions that would likely do more harm to consumers than help them) wanted the FCC to lean on Title I and Section 706 authority to regulate “information services,” forcing content companies to honor DNT requests. While the FCC is planning to begin proceedings examining new privacy policies for broadband companies in the next few months, the group argued this wouldn’t be enough to protect consumers from invasive snoopvertising:

“Many consumers are as concerned — or perhaps even more worried — about the online tracking and data collection practices of edge providers… edge providers collect the same sensitive personal information that broadband Internet access service providers collect, and that the Commission is committed to protecting. If the Commission does not act to regulate the collection of personal information by edge providers, the Commission will in effect be granting a regulatory advantage to the edge providers, implicating concerns of market distortions.”

But the FCC is having none of it. The agency dismissed (pdf) Consumer Watchdog’s request, stating that it “has been unequivocal in declaring that it has no intent to regulate edge providers.” And indeed, the FCC already has its hands full; it’s fighting off ISP lawyers trying to dismantle net neutrality and Title II reclassification, battling ISP-beholden states unhappy with the agency’s attack on protectionist broadband state law, and is about to go to war with ISPs on privacy. That’s a pretty full plate, with the FCC likely lacking the bandwidth for making any more “friends” at the moment.

And while some telecom industry sockpuppets will surely insist this is a double standard, the FCC’s decision may not be a bad thing. The EFF argues the FCC made the “right call, for now,” pointing out that consumers can choose not to use Google or Facebook, a luxury they don’t enjoy when being held captive by the uncompetitive broadband last mile:

“Why the distinction between websites and ISPs? Because ISPs occupy a much more privileged position on the network. They carry all of a user’s traffic. That gives them the power to act as gatekeepers, deciding what sorts of traffic users can send and receive. It also gives them the opportunity to modify user traffic, adding privacy-destroying tags like Verizon’s UIDH super-cookie.

Edge providers, on the other hand, don’t have quite as much power. It’s a lot easier for users to “vote with their feet” and use a different edge provider for search, social networking, blogging, etc., than it is to change ISPs. Users also have more control over what information they send to edge providers — that’s why tracker blockers like Privacy Badger work. And of course, there’s the matter of jurisdiction; while ISPs operate in specific geographical areas, websites are accessible (and hosted) all over the world, which would raise all sorts of terrible jurisdictional issues.”

In other words, enforcement would be impossible even if the FCC had decided to regulate websites and stumble into the Do Not Track mess. It’s a fairly restrained decision for an agency consistently accused of being power mad, and the right call for a regulator that will need every spare calorie for its mammoth battle against the broadband industry duopoly.

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