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· Issue 19 · August 2012

Like it or not, “Do Not Track” (a/k/a “DNT”) is coming

as a result of Washington, the privacy community

and technology companies. As industry moves closer

to adopting some form of DNT, is it important to under-

stand what it is, what it is not and what it might mean for

the future of the affiliate marketing industry.

DNT generally refers to interactive companies hon-

oring a user’s browser preference setting to stop online

tracking through the use of cookies and other technolo-

gies by all sites through that user’s browser. The result

would be that companies would no longer serve that user

targeted online ads.

However, there is far from unanimity on how far Do

Not Track should extend and whether it should be an opt-

in or opt-out user preference.

It may very well be that industry adopted Do Not

Track would not only result in an opt-out from targeted or

behavioral advertising, but would opt-out users from all

tracking for any purpose; including for purposes of affili-

ate marketing.

As an industry that relies upon accurate tracking to

properly function, wide-spread adoption of DNT could be a

cataclysmic event.

FTC Privacy Report

The Federal Trade Commission (“FTC”) stated in its

privacy report earlier this year that Do Not Track is an

important area where progress is needed. Moreover, the

report added that the FTC would work with browser ven-

dors, industry groups, and the World Wide Web Consor-

tium (“W3C”), an international standards-setting body, to

“complete implementation of an easy-to-use, persistent,

and effective Do Not Track system.”

W3C Actions

The W3C’s Tracking Protection Working Group has

been meeting since September 2011 to establish techno-

logical standards for Do Not Track. Since then, the W3C has

issued a First Public Working Draft of “Tracking Compliance

and Scope,” which defines the meaning of a Do Not Track

preference and sets out practices for Web sites to comply

with this preference.

Participants in the W3C process have included repre-

sentatives of Apple, AT&T, the Center for Digital Democra-

cy, the Electronics Frontier Foundation, Google, Microsoft,

Mozilla, Yahoo!, and the FTC, among others.

Microsoft

Microsoft, a participant in the W3C project, recently

surprised the industry by unilaterally announcing that In-

ternet Explorer 10 would have the Do Not Track feature on

by default. This position goes farther than the FTC and W3C

which have indicated that DNT will be option for users to

select, but will not be the default position. Based on the

market share of Internet Explorer, this could have a huge

impact.

Key Questions for the Affiliate

Marketing Industry

There are many unanswered questions in this DNT

process, such as (i) what exceptions to the all or noth-

ing DNT preference will be implemented, (ii) will websites

honor the DNT preference setting if it is implanted and (iii)

how will industry trade groups and the FTC react.

There will certainly be an impact on the affiliate mar-

keting industry. The question is how great of an impact

and how will the industry adapt to life in a DNT world?

Gary Kibel is a Partner with the law firm of Davis & Gilbert LLP.

Gary

Kib

el

on Affiliate Marketing

by Gary Kibel

Impact

Do Not Track’s