New Google, Mozilla Anti-Tracking Technologies Called Big Test of Self-Regulation

"If the industry fights it,” by refusing to respect consumers’ expressed preferences, “that’s going to be an excuse for Congress to say, ‘OK, we're going to regulate,'” Dempsey said Tuesday at a forum organized by the Patton Boggs law firm and the Information Technology Industry Council (ITI). And working out the details of a federal do-not-track requirement “would be a nightmare,” he said.

Not thinking through legislation against online tracking runs “the risk of crippling a significant part of the economy,” said Robert Quicksilver of Patton Boggs. He acknowledged “there’s a lot of support and momentum for doing something on the privacy side.”

Companies need to educate consumers and police themselves to avoid legislation “that could be very damaging,” Quicksilver said. The conception of Internet offerings as mainly free rests on companies like Google “monetizing your attention” and “your data,” he said. The system benefits consumers as well as advertisers and publishers, Quicksilver said. “If we shut that down, we see some of that content going behind pay walls."

Some Congress members and executive branch officials “don’t understand” the problem, and they “should be extremely cautious about adopting a mechanism like do-not-track,” Quicksilver said. But “clarity” in the law “would be helpful,” and giving consumers information about what’s done with their data, along with “some degree of choice,” is a good idea, he said. “Tens of billions of dollars and tens of thousands of jobs are at stake,” agreed Brian Knapp, chief operating officer of Loopt, a mobile location company.

But Knapp was more upbeat about the online-privacy landscape. “The FTC has done a pretty good job,” he said. “Granted, there’s been some saber-rattling going on.” And “industry is doing a pretty good job of holding to” principles that the commission has offered, Knapp said. All the “big companies” take privacy seriously and act responsibly, though they take “missteps,” he said.

Loopt treats privacy as a business matter more than a compliance problem, Knapp said. “We look at this like a trust thing, a marketing thing, a product-development thing.” He said users “really care more about being surprised than about privacy.” Dempsey called the thrust of the federal Communications for Law Enforcement Act for all networks to be “wiretap-friendly” undercuts “the whole trust underpinning” of digital technology.

The federal government is coming at companies from both directions -- telling them that they're sometimes keeping too much consumer information, but saying for law enforcement and homeland security purposes, “you're not collecting enough information,” Dempsey said. Referring to a requirement proposed by the Department of Justice and others in law enforcement, Knapp said, “The notion that we need to keep data for a couple of years is a real concern.” The company stores location data 24 hours, “so two years would be a really big change."

Former FCC Chairman Kevin Martin said carriers and other companies are caught between government demands for consumer information and worries about liability for disclosure. Clarifying companies’ responsibilities is the most important goal in changing federal law, said Martin, co-chair of Patton Boggs’ technology and communications practice.

The year 2001 will be “very active and risky” one in federal privacy and security policy, Dempsey said. On the table are “the B2C piece,” about consumer and service provider “data flows”; cybersecurity, with breach notification and regulatory requirements in design under discussion; and the availability to government officials of information collected by companies, he said.

Breach-notice provisions in federal legislation are “likely to get blocked” if they would substantially weaken the requirements that state laws have created, Dempsey said. Cybersecurity legislation “is a multiyear process” on the Hill, Martin said. “We're getting closer,” but it may not pass this year, he said.

Speakers from Patton Boggs had two-thirds of the slots in the event’s five sessions. Pitches for lobbying business came from the stage with varying degrees of subtlety throughout the day. Trent Lott, a former Senate majority leader, said he and other members of the firm were there to assist technology companies “educate and influence members of Congress” more than they have. Monica Desai, who used to be the chief of the FCC’s Media Bureau and Consumer and Governmental Affairs Bureau, offered the firm’s help in navigating commission certification of white-spaces devices.

CEO Dean Garfield of the council told us it isn’t a client of the law firm and the joint sponsorship resulted from a common interest in marketing to Silicon Valley companies. He told the audience, “It’s important to be involved, through Patton Boggs or ITI as agents, but you folks have to be involved” directly as well in federal policymaking. Name badges showed people in attendance from AT&T, Comcast, IBM, NextWave, Oracle, TechAmerica, Tropos, VeriSign, VMware, several venture capital firms, consulting and real estate companies and the ACLU of Northern California.