To Track or 'Do Not Track' : Advancing Transparency and Individual Control in Online Behavioral Advertising

The past decade has seen a proliferation of online data collection, processing, analysis and storage capacities leading businesses to employ increasingly sophisticated technologies to track and profile individual users. The use of online behavioral tracking for advertising purposes has drawn criticism from journalists, privacy advocates and regulators. Indeed, the behavioral tracking industry is currently the focus of the online privacy debate. At the center of the discussion is the Federal Trade Commission’s Do Not Track (DNT) proposal. The debate raging around DNT and the specific details of its implementation disguises a more fundamental disagreement among stakeholders about deeper societal values and norms. Unless policymakers address this underlying normative question – is online behavioral tracking a social good or an unnecessary evil – they may not be able to find a solution for implementing user choice in the context of online privacy. Practical progress advancing user privacy will be best served if policymakers and industry focus their debate on the desirable balance between efficiency and individual rights and if businesses implement tracking mechanisms fairly and responsibly. Policymakers must engage with these underlying normative questions; they cannot continue to sidestep these issues in the hope that “users will decide” for themselves