The New York Times’ Glib Call for Internet and Software Regulation

by on January 30, 2011 · 7 comments

You have to read all the way to the end to get exactly what the New York Times is getting at in its Sunday editorial, “Netizens Gain Some Privacy.”

Congress should require all advertising and tracking companies to offer consumers the choice of whether they want to be followed online to receive tailored ads, and make that option easily chosen on every browser.

That means Congress—or the federal agency it punts to—would tell authors of Internet browsing software how they are allowed to do their jobs. Companies producing browser software that didn’t conform to federal standards would be violating the law.

In addition, any Web site that tailored ads to their users’ interests, or the networks that now generally provide that service, would be subject to federal regulation and enforcement that would of necessity involve investigation of the data they collect and what they do with it.

Along with existing browser capabilities (Tools > Options > Privacy tab > cookie settings), forthcoming amendments to browsers will give users more control over the information they share with the sites they visit. That exercise of control is the ultimate do-not-track. It’s far preferable to the New York Times‘ idea, which has the Web user issuing a request not to be tracked and wondering whether government regulators can produce obedience.

[I got enough push-back to a recent post arguing the existence of market nimbleness in the browser area that I’m unsure of the thesis I expressed there. The better explanation of what’s going on may be that regulatory pressure is moving browser authors and others to meet the peculiar demands of the pro-regulatory community. The reason they have waited to act until now is because they do not perceive consumers’ interests to be met by protections against tailored advertising. The question of what meets consumers’ interests won’t be answered if regulation supplants markets, of course.]

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  • jamie

    “The reason they have waited to act until now is because they do not perceive consumers’ interests to be met by protections against tailored advertising. “

    I really do not think this is true. I think this is an area of swift change, both technically and in terms of what “Joe User” understands about the true situation. Fr that matter, as a technologist building web sites for a living, I don’t know what, exactly, all the data trackers are up to.

    Add in that three of the major browser makers (Apple, MS and Google) have partly conflicting motivations, in that compiling user profiles is an income stream that will be materially damaged by building in DNT headers that become a new norm that works the way people who are pushing it want it to work.

    I do think it is premature for regulation. There is simply too much going on, the moving parts are still changing shape, etc. But speaking of glib, pretending that browser makers are saintly humble servants of the masses is to ignore some pretty big elephants.

  • Jim Harper

    If you’d expand on two of your points here, Jamie, I’d appreciate it.

    First, do you have any evidence of consumers’ interest? Something beyond your opinion or consensus among a small batch of technologists? It’s very hard to learn what consumers truly want — surveys, for example, reveal only what people say they want in the absence of real-world trade-offs. Please share any actual evidence — maybe some natural experiment I haven’t thought of.

    Second, (ignoring things I did not say — “saintly humble”) what are the elephants to which you refer? I believe that browser makers respond to what they perceive as getting them the most profits. If consumers want to go un-tracked they’ll choose browsers that enable them to do that, maximizing the profits of browser makers who serve them. Is there some dynamic other than the profit motive at play among browser makers?

  • Jamie


    I do not have any evidence that can be studied with any rigor. That was part of my point, and one reason why I was (sort of) agreeing with you that it is not the time to codify anything in law. People are still mostly ignorant of what is done with the masses of data that various groups are compiling, the uses that data are put to are still evolving, the legal consequences (I’m thinking of just first-order issues, like Facebook crap in lawsuits, etc.) are poorly understood and evolving, etc. Strictly from the anecdata dept., it is quite clear to me that when I describe the technical details behind ‘why those Amazon ads follow me around online’ to people who do not work in the industry, their opinions change as their ignorance decreases. I don’t think I have my thumb on the scale here- I’m open to the notion that norms will settle at something like commercial-panopticon for free content. I build systems that crunch data for a living (not advertising data, but I could easily go there).

    My point about conflicted motives of browser makers, I thought, was pretty clear. I rely on the same notion of profit motive as you do. We know Microsoft had an internal conflict over privacy controls in IE 8, where user- focused controls to allow more control over third party cookies were quashed by the part of the business that deals with ads. If you don’t remember it, googling ‘ watered down IE privacy controls’ will refresh your memory. In any case, Google is likely much more conflicted about this, for obvious reasons. Apple is more interesting, and I don’t know what their ad offering will do to their motives, but I think it is safe to say they will avoid offering fine-grained preference options.

    The point being, of course, that Mozilla and maybe Opera are the only browser makers that don’t also make money on user profiling while having any significant market share. (I mean, I still use lynx from ti e to time, but..)

    Speaking of marshaling data to one’s arguments, the idea that users flow so easily to better options is dogma, not data. Ask yourself why Microsoft itself is struggling to get people away from IE 6.

    (Field note: Disqus’ Javascript form validation doesn’t seem to play well with the iPad. Had to mail myself this reply to post from a real machine, thus somewhat diminishing the joy of reading my feeds over coffee. At least it has copy-paste now. Progress!)

  • Jim Harper

    Oy. People failing to move from IE 6 doesn’t prove anything except that they have insufficient reasons to move off of IE 6. (Surely you aren’t arguing that they are being restrained from making the move.) It doesn’t disprove that they move when they’re motivated. Your suggestion that switching is unproven “dogma” isn’t supported by the evidence you’ve presented.

    Here’s a simple point where I think we can find agreement. Disqus SUCKS! ;-)

  • Jamie

    “Your suggestion that switching is unproven “dogma” isn’t supported by the evidence you’ve presented.”

    Well, now that we’ve both accused each other of bringing no evidence to the table, I guess we’re done there. I’d just point out that switching costs are multidimensional. Otherwise, we could just say that we know you’re fine with the FCC and leave it at that, because you have demonstrated that you find insufficient reason to leave the country.

    I take it that your silence on the motivational conflicts most of the major browser makers feel means you’re not disputing that?

  • Jim Harper

    You’re pointing out to me that switching costs are multidimensional? I wasn’t the one who said, “Ask yourself why Microsoft itself is struggling to get people away from IE 6.”

    Hmmm. No, I don’t think you should infer anything from what I said. Our stacks of assumptions and inferences are too different to warrant drawing any conclusions from this incautious dialogue. (But think “trade-offs,” not “conflicts.”)

    I take it you disagree with the latest theory of browser-author behavior. I’ll be continuing to think about it.

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