Rockefeller Goes On a Do Not Track Rant in Hearing

Advertisers have tough time defending self-regulation

Sen. Jay Rockefeller (D-W.Va.) started and ended the Do Not Track hearing off with a rant, one that anyone who attended the commerce chairman’s previous seven privacy hearings knows all too well. Rockefeller just doesn’t “believe” that the advertising industry will self-regulate when it comes to giving consumers the choice to opt out of interest-based advertising. And no one, either on the witness stand or on the committee, was going to change his mind.

Most of the hearing centered on Rockefeller’s accusation that advertisers went back on their promise, made in February 2012, to honor a universal Do Not Track solution in browsers by the end of 2012.

“It is now April 2013, and consumers are still waiting for these Do Not Track standards. Advertisers are continuing to ignore Do Not Track headers and consumers’ requests for privacy,” said Rockefeller, referring to Microsoft and Mozilla browsers. “I am disturbed with the rhetoric from advertisers that suggests they might try to circumvent the sensible privacy protections that web browsers are providing consumers.”

Even though Rockefeller said he wanted to keep his mind open, he made it clear that he would be willing to cut off witnesses who resorted to rhetoric: “I do not want to hear familiar talking points that serve no purpose but to confuse the debate.”

Other committee members tried to bring up other topics surrounding the privacy debate, but didn’t get very far. Ranking member Sen. John Thune (R-S.D.) and Sen. Dean Heller (R-Nev.) both tried, unsuccessfully, to steer the debate to a discussion of harm from online behavioral advertising.

"This sector provides many jobs and generates multiple billions of dollars in economic activity," Heller said. "Understanding exactly what first and third parties track online and whether the consumer is harmed in some fashion or even cares is incredibly important to understand. Especially if a government solution is being considered."

Sen. Claire McCaskill (D-Mo.) questioned why the stakeholders in the privacy debate were trying to work out policy differences in the World Wide Web Consortium, which meets again next month on privacy. "I'm uncomfortable about ceding control to the W3C. Why are we leaving it to this group," McCaskill asked. 

But no matter what the questions or the answers from the witnesses, this hearing was about Rockefeller’s position that consumers are being harmed without a Do Not Track standard, that advertisers were holding it up in the W3C meeting, and that a legislative solution was the only answer.

Lou Mastria, the Digital Advertising Alliance’s managing director, tried to reassure Rockefeller that self-regulation was working.

“We made an agreement at the White House to include browser-based choices as a complement to our system. We want everyone to abide by that. We think that’s fair,” Mastria said. “What is happening with Mozilla and Microsoft is that the browsers are making the choice, not the consumer. We are delivering choice day in and day out.”

Rockefeller didn’t buy Mastria’s answer. Ignoring the DAA’s claim that because browsers were on by default, they didn’t conform with the agreement the DAA made, Rockefeller shot back.

“The reason you don’t like Mozilla and Microsoft is they made it easy for consumers. We’re not about how much money you make,” Rockefeller said. “We’re talking about making it more difficult for you to sell ads. I want privacy. That’s a basic American instinct.”

Towards the end of the hearing, Mastria again tried to convince Sen. Richard Blumenthal (D-Conn.) that the DAA program delivered what was proposed in Rockefeller’s Do Not Track bill that he co-sponsored.

Again, Rockefeller jumped in: “The standards are totally unenforceable and [Mastria] knows it,” he said to Blumenthal.

Following the hearing, Rockefeller reiterated his belief that it would take his Do Not Track Bill to get consumers the privacy he believed they wanted.

So far, though, Rockefeller has only one co-sponsor.