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Google joins California Do-Not-Track opposition lobby

Opt-in, opt-out bait and switch

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Google has become the only browser marker to explicitly join lobbyists opposing a proposed law giving consumers the legal right to keep companies from tracking them online.

The giant has put its name to an alarmist letter signed by 30 other organizations, trade groups and individual companies, objecting to the passage of a Do-Not-Track bill that was debated for this first time by politicians in Google's home state of California this week.

Other signatories on the letter include the CTIA and TechNet, organizations that Google belongs to with fellow private sector browser makers Microsoft and Apple. But Google is the only one to have actually added its name to that letter as a standalone signatory.

The letter is also signed by a host of marketing and advertising groups, California business associations, AOL, and Yahoo!.

The letter was addressed to politicians on the California Senate Judiciary Committee who voted 3-2 to approve the Do-Not-Track bill (SB 761) for further debate.

The bill would require companies doing business online in California and with California consumers to give people the right to prevent businesses tracking, storing, or selling their online activity.

The Google-backed letter calls SB 761 an act of blatant discrimination against the state's advertising industry that "gratuitously" singles out advertising companies for special regulation.

The letter justified this claim by saying that "opt-in" is not viable for most tracking models. But do-not-track is an opt-out procedure, not an opt-in. It allows consumers to actively take themselves out of tracking. The law does not seek to ensure that web browsers come with do-not-track features turned on by default.

The bill is designed to force websites to work with do-not-track technologies appearing in browsers from Microsoft, Google, Mozilla, and Apple. These technologies started arriving after the Federal Trade Commission (FTC) expressed its concern about the state of consumer privacy on the web.

The FTC offered a framework and recommendations to protect privacy and control sharing of consumers' data, which includes a do-not-track mechanism with a simple opt-out procedure for browsers.

Mozilla, Apple, and Microsoft are either using, moving to, or opening the door to an HTTP header in their browsers that would tell a site not to track the user. Only Google has rejected this entirely. It's providing a plug-in for opting-out of tracking cookies from multiple advertising networks in Chrome.

The letter signed by Google contains a bit more sleight of hand. Do-not-track would "apply to offline data collection as well", the letter continues before adding that – ahem – this would only happen "if" the Attorney General's office decides to make it so.

No doubt, the Do-Not-Track law would also demand that web retailers all wear blue pants backwards and sing I'm a Yankee Doodle Dandy if the AG's office decided they should. According to the bill's current state, it will be California's AG who draws up the rules protecting online consumers if, or when, the bill is finally enacted.

The letter goes on to claim that do-not-track is not only unworkable but will burden good companies as bad actors keep doing what they're doing. It says spam, phishing, and privacy laws are ignored by attackers, but it overlooks the fact that acts such as CAN-SPAM have cleaned up online advertising and marketing practices, and made it easier to identify, prosecute, and penalize abusers like "Spamford" Wallace.

There's some boilerplate argument in the letter about hurting California's tech economy, killing jobs, and stifling innovation. Product recommendations, real-time traffic, mapping, search suggestions - all Googly online services - were all developed using customer data, the letter claims. So, apparently, was spell check. We're not sure how tracking people's online activity helped build something that's been a feature of most word-processing applications for more than 20 years.

The letter's bottom line is that there's enough regulation already in place to protect consumers' privacy online and the best course of action is to do nothing.

Self-regulation, according to the Google-backed letter, is much better as it points to work by the Network Advertising Industry Initiative and the Digital Advertising Alliance. These are probably the same industry kinds of self regulation the FTC said last year are moving too slowly.

The NAII and DAA do have one answer to protecting your privacy online: an "improved" icon for websites, which consumers can click on and that will link to a company's disclosure statement and let shoppers opt-out of tracking. Yes, you read that right: "opt-out" (warning: PDF).

You can read the full Google-backed letter here (warning: PDF).

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