How is "Do Not Track" is a joke, but website presenting a button "Do not use cookies" is not? What's the difference?
Do-not-track is opt-out, not opt-in, and in fact, it is not opt-anything since browsers started to set it to "1" by default without asking. There is no law forcing advertisers to honor that.
I guess it could work the other way: if you set do-not-track to 0 (meaning "do-track"), which no browser does by default, make cookies auto-accept and do not show the banner. But then the law says that it should require no more actions to refuse consent than to consent (to counter those ridiculous "accept or uncheck 100 boxes" popups), so it would mean they would also have to honor do-not-track=1, which they don't want to.
I don't know how legislation could be unbroken. Users don't want ads, don't want tracking, they just want the service they ask for and don't want to pay for it. Service providers want exactly the opposite. Also people need services and services need users. There is no solution that will satisfy everyone.
Similarly consumer protection laws—which the cookie banners are—are not set to satisfy everyone, they are set such that companies cannot use their outsized power to exploit their customers. A good consumer protection law will simply ban harmful behavior regardless of whether companies which engage in said harmful behavior want are satisfied with that ban or not. A good consumer protection law, will satisfy the user (or rather the general public) but it may satisfy the companies.
Bad consumer protection laws try to pretend that trade offs don't exist. You don't want to see ads, that's fine, but now you either need to self-host that thing or pay someone else money to do it because they're no longer getting money from ads.
There is no point in having an opt in for tracking. If the user can be deprived of something for not opting in (i.e. you can't use the service) then it's useless, and if they can't then the number of people who would purposely opt in is entirely negligible and you ought to stop beating around the bush and do a tracking ban. But don't pretend that's not going to mean less "free stuff".
The problem is legislators are self-serving. They want to be seen doing something without actually forcing the trade off that would annihilate all of these companies, so instead they implement something compromised to claim they've done something even though they haven't actually done any good. Hence obnoxious cookie banners.
There are very many industries where this is exactly what happens. If you want a stack of lumber or a bag of oranges, it's a fungible commodity and there is no seller who can prevent you from buying the same thing from someone else if you don't like their terms.
If this is ever not the case, the thing you should be addressing is that, instead of trying to coerce an oligopoly that shouldn't exist into behaving under the threat of government penalties rather than competitive pressure. Because an uncompetitive market can screw you in ten thousand different ways regardless of whether you've made a dozen of them illegal.
> That means things like requiring sites to get permission to track, and punishing those that track users without permission. It's a good policy in theory, but it needs to be paired with good enforcement, and that's where things are currently lacking.
It's not a good policy in theory because the theory is ridiculous. If you have to consent to being tracked in exchange for nothing, nobody is going to do that. If you want a ban on tracking then call it what it is instead of trying to pretend that it isn't a ban on the "free services in exchange for tracking data" business model.
I actually agree with you that cookie banners are a bad policy, but for a different reason. As I understand it there are already requirements that the same service should also be available to opt-out users, however as your parent noted, enforcement is an issue. I, however, think that tracking users is extremely consumer hostile, and I think a much better policy would be a simple ban on targeted advertising.
There isn't an inherent power imbalance that exists between the company and their customers, when there is consumer choice. Which is why regulations that restrict rather than expand consumer choice are ill-conceived.
> If there is no way to doing a service for free without harming the customers, this service should be regulated such that no vendor is able to provide this service for free.
But that isn't what those regulations do, because legislators want to pretend to do something while not actually forcing the trade off inherent in really doing the thing they're only pretending to do.
> I, however, think that tracking users is extremely consumer hostile, and I think a much better policy would be a simple ban on targeted advertising.
Which is a misunderstanding of the problem.
What's actually happening in these markets is that we a) have laws that create a strong network effect (e.g. adversarial interoperability is constrained rather than required) which means that b) the largest networks win, and the networks available for free then becomes the largest.
Which in turn means you don't have a choice, because Facebook is tracking everyone but everybody else is using Facebook, which means you're stuck using Facebook.
If you ban the tracking while leaving Facebook as the incumbent, two things happen. First, those laws are extremely difficult to enforce because neither you nor the government can easily tell what they do with the information they inherently get from the use of a centralized service, so they aren't effective. And second, they come up with some other business model -- which will still be abusive because they still have market power from the network effect -- and then get to blame the new cash extraction scheme on the law.
Whereas if you do what you ought to do and facilitate adversarial interoperability, that still sinks their business model, because then people are accessing everything via user agents that block tracking and ads, but it does it while also breaking their network effect by opening up the networks so they can't use their market power to swap in some new abusive business model.
> There isn't an inherent power imbalance that exists between the company and their customers
That is very simplistic, and maybe idealistic from an unrealistic view of free-market capitalism. But there is certainly an inherent power imbalance. Before leaded gasoline was banned, it was extremely hard for environmentally conscious consumer to make the ethical choice and buy unleaded gasoline. Before seatbelts were required, a safety aware consumer might still have bought a car without one simply because the cars with seatbelts were either unavailable or unaffordable. Those aren’t real choices, but rather choices which are forced onto the consumer as a result of the competitive environment where the consumer hostile option generates much more revenue for the company.
The hard part isn't the rule, it's the enforcement.
To begin with, banning targeted advertising isn't really what you want to do anyway. If you have a sandwich shop in Pittsburgh and you put up billboards in Pittsburgh but not in Anchorage, you're targeting people in Pittsburgh. If you sell servers and you buy ads in a tech magazine, you're targeting tech people. I assume you're not proposing to require someone who wants to buy ads for their local independent pet store to have nearly all of them shown to people who are on the other side of the country?
What you're really trying to do is ban the use of individualized tracking data. But that's extremely difficult to detect, because if you tell Facebook "show this ad to people in Miami", how do you know if it's showing them to someone because they're viewing a post likely to be popular with people in Miami in general vs. because the company is keeping surveillance dossiers on every individual user?
The only thing that actually works is for them not to have the data to begin with. Which is the thing where you have to empower user agents to provably constrain what information services have about their users, i.e. adversarial interoperability.
> That is very simplistic, and maybe idealistic from an unrealistic view of free-market capitalism.
It's a factual description of competitive markets.
> Before leaded gasoline was banned, it was extremely hard for environmentally conscious consumer to make the ethical choice and buy unleaded gasoline.
The ban on leaded gasoline isn't a consumer protection regulation, it's an environmental regulation. Gas stations weren't selling leaded gasoline in spite of customers preferring unleaded, they were selling it because it was cheaper to make and therefore what customers preferred in the absence of a ban. It's a completely different category of problem and results from an externality in which the seller and the buyer both want the same thing but that thing harms some third party who isn't participating in the transaction.
> Before seatbelts were required, a safety aware consumer might still have bought a car without one simply because the cars with seatbelts were either unavailable or unaffordable.
This is how safety features evolve.
Seat belts were invented in the 19th century but we didn't start getting strong evidence of their effectiveness until the 1950s and 60s. Meanwhile that's the same period of time the US started building the interstate system with the corresponding increase in vehicle ownership, and therefore accidents.
So into the 1960s there was an increasing concern about vehicle safety, the percentage of cars offered with seat belts started increasing, and then Congress decided to mandate them -- which is what the market was already doing, because the customers (who are largely the same people as the voters) were demanding it.
That is a consistent trend. Things like that get mandated just as the majority of the market starts offering them, and then Congress swoops in to take credit for the benefit of what was already happening regardless.
What those laws really do is a) increase compliance costs (and therefore prices), and b) prohibit the minority of customers from buying something for specific reasons which is different than what the majority wants, because it's banned. For example, all cars are now required to have anti-lock brakes, but ABS can increase stopping distances on certain types of terrain. A professional driver who is buying a vehicle for specific use on those types of terrain is now prohibited from buying a vehicle without ABS on purpose even though it's known to cause safety problems for them.
> Those aren’t real choices, but rather choices which are forced onto the consumer as a result of the competitive environment where the consumer hostile option generates much more revenue for the company.
That type of choice is the thing that specifically doesn't happen in a competitive market, because then the consumer goes to a competitor.
Where it does happen is in uncompetitive markets, but in that case what you need is not to restrict the customer's choices, it's to increase competition.
IIRC IE10 did that, to much outcry because it upended the whole DNT being an explicit choice; no other browser (including Edge) set it as a default.
There have been thoughts about using DNT (the technical communication mechanism about consent/objection) in correlation with GDPR (the legal framework to enforce consent/objection compliance)
https://www.w3.org/blog/2018/do-not-track-and-the-gdpr/
The GDPR explicitly mentions objection via technical means:
> In the context of the use of information society services, and notwithstanding Directive 2002/58/EC, the data subject may exercise his or her right to object by automated means using technical specifications.
https://law.stackexchange.com/a/90002
People like to debate as to whether DNT itself has enough meaning:
> Due to the confusion about this header's meaning, it has effectively failed.
https://law.stackexchange.com/a/90004
I myself consider DNT as what it means at face value: I do not want to be tracked, by anyone, ever. I don't know what's "confusing" about that.
The only ones that are "confused" are the ones it would be detrimental to i.e the ones that perform and extract value from the tracking, and make people run in circles with contrived explanations.
It would be perfectly trivial for a browser to pop up a permission request per website like there is for webcams or microphone or notifications, and show no popup should I elect to blanket deny through global setting.
I think you can reasonably assume that if a website went through the trouble of making such a modal (for legal compliance reasons), the functionality works (also for legal compliance reasons). And, you as the client can verify whether it works, and can choose not to store them regardless.
How do you do that? Cookies are typically opaque (encrypted or hashed) bags of bits.