Similar to the bill introduced by Rep. Jackie Speier in February 2011, Sen. John Rockefeller (D-WV) introduced the Do-Not-Track Online Act of 2011 on May 9, 2011. Sen. Rockefeller announced that the bill would offer a “simple, straightforward way for people to stop companies from tracking their movements online.”
The FTC would be given one year to establish standards for implementing and enforcing a Do-Not-Track mechanism. The standards would apply to online service providers, including providers of mobile applications and services. If an individual expresses a Do-Not-Track preference, online service providers may only collect and use personal information from that person if: (1) it is necessary to provide a service requested by the individual and the information is anonymized or deleted after providing the service; or (2) the individual affirmatively consents after receiving “clear, conspicuous, and accurate notice on the collection and use of such information.”
The Act directs the FTC to consider six factors when implementing the Do-Not-Track standards: (1) the appropriate scope of covered conduct and persons; (2) technical feasibility and cost associated with the mechanism; (3) existing mechanisms; (4) how to make the public aware of the mechanism; (5) whether and how information could be collected on an anonymous basis so that it is not subject to the rules; and (6) standards by which personal information can be collected and used to provide a service requested by the user even if the user expressed a Do-Not-Track preference.
The FTC would be authorized to enforce the Do-Not-Track rules by treating violations as unfair and deceptive acts or practices. Moreover, state attorneys general may bring a civil enforcement action with penalties for non-compliance of up to $16,000 per day and a maximum total liability of $15,000,000—three times the cap on penalties proposed by Rep. Speier’s bill. Lastly, no private right of action is created, non-profit organizations are not exempt, and the FTC would be required to conduct a biennial review to assess the effectiveness of the rules and their effect on online commerce.
Unlike Rep. Speier’s bill, Rockefeller’s bill does not address preemption of inconsistent state laws. Preemption will be an interesting issue to follow in conjunction with the pending Do-Not-Track legislation in California.
