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In June, Microsoft announced that it was putting its weight behind Do Not Track (DNT) efforts and would ship the next version of Internet Explorer with a DNT preference enabled.

A week later, the company's plans were called into question as it became clear that Microsoft's approach would run afoul of the current DNT specification draft, which states that a browser can't send a DNT preference "without a user's explicit consent."

So where does Microsoft stand now?

Yesterday, Brendon Lynch, Microsoft's Chief Privacy Officer, took to the Microsoft on the Issues blog to clarify its plans for DNT in Internet Explorer 10.

For users being introduced to IE10 through Windows 8, the DNT setting will be configured during setup:

In the Windows 8 set-up experience, customers will be asked to choose between two ways of configuring a number of settings: “Express Settings” or “Customize.” By providing a simple experience that allows customers to set their preferences, we’ve sought to balance ease of use with choice and control. The recommended Express Settings are designed to expedite and streamline the overall set-up process, and, if selected, generally improve a customer’s privacy, security, and overall experience on the device.

When selecting Express Settings, Windows 8 users will receive "prominent notice" that DNT will be enabled if they proceed. For Windows 7 users upgrading to IE10, DNT will be enabled by default. Once again, a "prominent notice" that DNT is enabled will be displayed so that users wishing to turn it off can do so.

Obviously, many publishers and ad networks won't be pleased with Microsoft's approach. Previously, when news broke that Microsoft was going to automatically enable DNT in IE10, top ad agency executives reached out to Microsoft, encouraging it to reconsider. Some even tried to convince Microsoft that it would be helping its arch rival Google. "We made the point to Microsoft that if anything this will strengthen search, and strengthen Google," explained John Montgomery, the COO of Group M Interaction, a WPP company.

But apparently Microsoft wasn't convinced with the industry's arguments, and in "putting people first," the Redmond software giant will seemingly force publishers and players in the digital advertising ecosystem to deal with its approach.

The question: even if Microsoft technically allows users to make a choice when they set up Windows 8 or upgrade to IE10, will this approach be considered compliant with the DNT spec given that the process essentially forces the user to opt out from DNT as opposed to selecting from two choices?

If it isn't and some players decide to ignore IE10's DNT preference as a result, DNT could quickly become an EU cookie law-sized debacle.

Patricio Robles

Published 8 August, 2012 by Patricio Robles

Patricio Robles is a tech reporter at Econsultancy. Follow him on Twitter.

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Mike O'Neill

If DNT is set it may be enforceable under contract law http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2064920. At the least you can expect to see the FTC and the EC act against those that ignore it.
As for supposed W3C non-compliance being a reason to ignore it, it is not possible to determine if it was set by a user specifically or left set by default.
In any case the behavioural advertising lobby(who have a strong voice on the W3C Tracking Protection group) are only arguing about what the default is, not whether there should be one. Their own preferred default naturally coincides with their commercial interest.

over 4 years ago

Patricio Robles

Patricio Robles, Tech Reporter at Econsultancy

Mike,

The idea that a DNT preference constitutes a legally-binding contract is an interesting but frankly absurd one. Law journals are frequently home to "novel" ideas created out of thin air by law professors and students and I think this author's reference to "corporate surveillance of consumers" reveals the bias driving his argument.

On the FTC and EC fronts, it would be interesting to see how feasible enforcement is. Identifying which companies are not respecting DNT could be difficult, and I don't think either has the resources to go after every violator. Furthermore, the FTC and EC would have little ability to force companies outside of their jurisdictions to comply. So the net-net for consumers (the group this is supposedly all about) is that they'll never be sure that their preference is being respected, negating to a large degree the value of DNT in the first place.

over 4 years ago

Jonathan Kay

Jonathan Kay, Managing Director at 120 Feet

Putting aside arguments about the DNT specification draft, if the 'average' Win8 [express set-up] user is asked whether or not they want sites to track them, and the default is 'no', then I suspect that few will change it to 'yes'.

This will have a massive impact on the analysts' role and that of measurement software.

over 4 years ago

Alec Cochrane

Alec Cochrane, Head of Optimisation at Blue Latitude

I'm with Patricio on this one. The whole point of DNT is that publishers and advertisers will listen to it if it is a small minority - it's a price they're willing to pay for making it seem like they are listening to the customers.

All it would take really is for Google to say that their Analytics product is going to ignore it and it becomes entirely worthless - half of the web would still be tracking you. And what would the FTC be able to do about it? Google would just claim that it was up the website owners to decide, not for them. It's a lose lose situation for all if MS enable it by default.

over 4 years ago

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Deri Jones, CEO at SciVisum Ltd

Alec

Surely if Google ignore it - the FTC and EC would come after them - Google would have to respect it wouldn't they?

As Mike said:
> At the least you can expect to see the FTC and the EC act against those that ignore it.

over 4 years ago

Jonathan Kay

Jonathan Kay, Managing Director at 120 Feet

They way I see is is that biggest problem of Google ignoring DNT isn't possible legal action but the sh*t storm that we'd see in the press as they whip up hysteria about privacy.

over 4 years ago

Alec Cochrane

Alec Cochrane, Head of Optimisation at Blue Latitude

I can't believe that the FTC or EC would touch this with a barge pole to be honest. Google already provides options to opt out of their tracking, plus they don't pay attention to DNT at the moment. If it ever went to court they would claim that DNT is a big catch all that is just harming businesses by providing opt out as default, despite what Brendon Lynch claims in his post. Besides which the data and the processing is owned by the client and not Google anyway, so it would fall on the clients shoulders to come up with a solution, just as it did with the EU cookie directive.

I know the EC have been keen on picking up on privacy rulings, but the FTC are relatively toothless in these situations - they don't have anywhere near as strong data privacy rules as we do in the EU and tend to be decentralised into industry organisations.

Personally, I think if Google Analytics said they were ignoring it because it didn't have any value, then the EC and FTC would follow their lead.

over 4 years ago

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