Google, Mozilla Try to Preempt Regulation

Internet companies are starting to really feel the heat from regulators and legislators that have accused the industry of not doing enough to protect their users’ privacy. So now, a few of the Web’s biggest players are doing their best to cool the flame.

Over the past few days, Mozilla and Google have each introduced “Do Not Track” privacy controls for their browsers—Firefox and Chrome, respectively. The two are following Microsoft’s lead; new privacy features for Internet Explorer debuted last month.

While the three different approaches advance the online privacy debate on the Hill, they are unlikely to stop the introduction of legislation in the works on the Senate side, which will take the lead on the issue. Sources confirmed that Sen. John Kerry, D-Mass., has already drafted legislation on online ad privacy and has been circulating it. Hearings are expected next month.

“There’s no doubt legislators will hold hearings and introduce bills. The question is whether they see leading practices as the ones they want to enshrine,” said Jules Polonetsky, director of the Future of Privacy Forum. “Legislators aren’t going to drop the notion of legislating. On both sides of the aisle, there is a desire to propose legislation.”

The online advertising industry, in constant motion these days on the Hill and at the Federal Trade Commission, is hoping to tip the scales in favor of Google’s approach. The search giant just unveiled a “Keep My Opt-Outs” plug-in for its Chrome browser, and it plans to roll out the plug-in for all other browsers, providing a universal end-to-end solution when coupled with the Digital Advertising Alliance’s self-regulation program.

“Google’s solution feeds into our self-regulatory program and addresses one of the key goals of the FTC that the consumer’s opt-out choice should be durable over time,” said Mike Zaneis, senior vice president and general counsel for the Interactive Advertising Bureau, one of the seven associations that formed the DAA. “Our self-regulatory program addresses the first two goals of enhanced consumer notice and easy-to-use, comprehensive choice. The third had been perplexing us a little.”

The FTC, which lashed out at the industry in December for moving too slow, had cautious kudos for both solutions, but didn’t embrace one solution over another. In statements, Jon Leibowitz, chairman of the FTC, characterized both as commendable “first steps,” adding that the solution “signals that Do Not Track options are technically feasible.” The regulator recently moved the comments deadline on its December report to Feb. 18.

All the different privacy approaches that are surfacing now may make it more difficult for the FTC and legislators to find a workable solution.

“This is a unique moment for the industry. If there is any way advertisers can move their [self-regulatory] program, now is the time,” said Amy Mushawhwar, a data and privacy attorney for Reed Smith. “Legislation could have considerable consequences and ultimately must stand the test of time and that’s especially true in [this] area.”