Comparative Reflection on Do Not Track as Non-Use

• In Event: Beyond Non-Use: Infrastructuralism and Interruption

Abstract

An October 2018 Gizmodo article titled “‘Do Not Track,’ the Privacy Tool Used by Millions of People, Doesn't Do Anything,” explained that very few sites respect the setting. Back in 2010, the Federal Trade Commission began a Do Not Track initiative that would allow users to effectively (but only) opt-out of online tracking - cookies. The U.S. consumer protection agency tapped the World Wide Web Consortium, the organization that sets technical standards for the web, to work out the details through a multistakeholder working group. The effort was derailed and delayed by disputes over the technical specifics. The W3C group did finally come up with a recommendation in 2016 and most browsers today have a “Do Not Track” setting that users can turn on. Major platforms like Google and Facebook ignore the signal of resistance from users.

A similar fate has fallen browser setting requirements in the European Union. After passing a specific “cookie law” in 2009 that generated various national laws on consent to tracking and supplemented the 2002 ePrivacy Directive, the EU is in the midst of draft an ePrivacy Regulation to match its General Data Protection Regulation (GDPR). The GDPR requires affirmative consent, or opt-in, for those sites and services that choose to use consent as their legal basis (there are five other options) for collecting and/or processing data. Consent must be freely given - cannot be part of non-negotiable terms and cannot determine functionality of site or service. Cookie dealers are reminded that consent in the GDPR is tied to consent under the draft ePrivacy Regulation. Very little scholarly or public attention has been paid to the ePrivacy Regulation but a great number of lobbying groups have taken notice. Most recently those lobbying efforts have resulted in the untimely death of Article 10, which dealt with privacy settings.

Cookies are certainly ubiquitous, but their role in contemporary web infrastructure and online platforms is part of the contested discourse of non-use, privacy, and resistance. Tech companies insist that the web cannot function without cookies and media outlets insist that they are vital to advertising - they are part of the infrastructure. Platforms argue that, of course, cookies are optional and users should have control of how their information is collected, which is best done within the platform itself. The language of infrastructure, platform, and non-use are tangled and deceptive - Google Chrome has a Do Not Track setting that Google itself does not acknowledge. The language is also weaponized to promote a particular type of consent and use at the platform level with absurd results. Recognizing Do Not Track as a type of mainstream resistance and non-use, the article follows its political path in the U.S. and EU to reveal the importance and simplicity of legal protection of non-use, as well as its seeming political impossibility.

Authors

• Meg Leta Jones, Georgetown University

• Jenny Lee, CCT Georgetown University