Sen. Jay Rockefeller (D-WV, and chairman of the Senate Commerce Committee) introduced the "Do-Not-Track Online Act" (S. 913), legislation which would require the Federal Trade Commission (FTC) to promulgate regulations setting standards for the implementation of a do-not-track mechanism whereby "an individual can simply and easily indicate whether the individual prefers to have personal information collected by providers of online services, including by providers of mobile applications and services". Such rules would also prohibit such providers, in most cases, from "collecting personal information on individuals who have expressed, via" such a do-not-track mechanism, "a preference not to have such information collected".

Service providers would be allowed to collect and use individuals' personal information regardless of their "expressed preference... to the extent-- (1) necessary to provide a service requested by the individual, including with respect to such service, basic functionality and effectiveness, so long as such information is anonymized or deleted upon the provision of such service; or (2) the individual-- (A) receives clear, conspicuous, and accurate notice on the collection and use of such information; and (B) affirmatively consents to such collection and use."

This legislation would apply to both for-profit and non-profit entities.

The bill does not define terms, and would leave it to the FTC to determine what constitutes such things as "personal information".

In writing the do-not-track rules, the FTC would have to "consider and take into account":

"(1) The appropriate scope of such standards and rules, including the conduct to which such rules shall apply and the persons required to comply with such rules."

(2) The technical feasibility and costs of-- (A) implementing mechanisms that would meet such standards; and (B) complying with such rules.

(3) Mechanisms that-- (A) have been developed or used before the date of the enactment of this Act; and (B) are for individuals to indicate simply and easily whether the individuals prefer to have personal information collected by providers of online services, including by providers of mobile applications and services.

(4) How mechanisms that meet such standards should be publicized and offered to individuals.

(5) Whether and how information can be collected and used on an anonymous basis so that the information-- (A) cannot be reasonably linked or identified with a person or device, both on its own and in combination with other information; and (B) does not qualify as personal information subject to the rules promulgated under subsection (a)(2).

(6) The standards under which personal information may be collected and used, subject to the anonymization or deletion requirements of subsection (b)(1)-- (A) to fulfill the basic functionality and effectiveness of an online service, including a mobile application or service; (B) to provide the content or services requested by individuals who have otherwise expressed, via a mechanism that meets the standards promulgated under subsection (a)(1), a preference not to have personal information collected; and (C) for such other purposes as the Commission determines substantially facilitates the functionality and effectiveness of the online service, or mobile application or service, in a manner that does not undermine an individual's preference, expressed via such mechanism, not to collect such information."

The FTC would have advanced APA rulemaking authority to implement the Act. A violation would be enforced by the FTC as “an unfair and deceptive act or practice” under Section 5 of the FTC Act and violations could also be prosecuted by State Attorneys General.

MRA has great concerns with the potential negative impact of S. 913 on online research, particularly since it leaves almost all the important details up to the FTC to decide -- especially the definition of "personal information", of which we know the FTC has a very broad view. MRA will share our concerns with Senator Rockefeller and the Commerce Committee in hopes of furthering a more constructive approach.