Consumer Watchdog Wednesday called on the Federal Trade Commission to ask Congress to pass Do Not Track legislation because “the self-regulatory effort to design Do Not Track is virtually dead in the water.”

In a letter to FTC Chairman Jon Leibowitz John M. Simpson, the nonpartisan nonprofit public interest group’s Privacy Project Director wrote:

“Almost a year ago with great fanfare in the media you said a Do Not Track mechanism would be in place by the end of last year.  You and you colleagues opted to rely on a self-regulatory process to implement Do Not Track, but alluded to the possibility of legislation if that process failed.  Not surprisingly the self-regulatory effort to design Do Not Track is virtually dead in the water.  After a year nothing has changed for the consumer.  You tried to use the bully pulpit, but the advertising industry did not heed your call. The time for words has passed; if you expect Do Not Track to be implemented, the Commission must endorse Do Not Track legislation now.”

Read Consumer Watchdog’s letter here

“As the Commission advocated in its report, Protecting Consumer Privacy in an Era of Rapid Change, a Do Not Track mechanism would offer people control over whether data about them was collected,” Simpson wrote.

Consumer Watchdog noted that the World Wide Web Consortium (W3C), an Internet standards setting organization, has been trying to develop specifications about how the Do Not Track message would be sent and what the obligations would be for a website that receives it.  “Talks have dragged on more than a year with weekly conference calls and six face-to-face meetings, while the W3C’s Tracking Protection Working Group has grown to 102 members,” Simpson wrote. “Another round of meetings is scheduled next month. Talks can at best be charitably described as stalled.”

“You and the Commission repeatedly put faith in self-regulatory efforts and predicted that a Do Not Track mechanism would be in place by the end of the year,” Simpson wrote.  “Unfortunately that optimism has proved to be unwarranted.”

The letter concluded:

“The end of the year as passed. Your words have gone largely unheeded by the advertising industry. The bully pulpit has not brought about a Do Not Track standard. Lest your words be taken as empty threats and given the logjam in the World Wide Web Consortium process, the time for decisive action by the FTC has arrived.  Sen. Jay Rockefeller, (D-WV) introduced a Do Not Track bill in the last session of Congress.  We understand he intends to re-introduce the bill this session.  We call on you and the entire Commission to endorse the urgent need for Do Not Track legislation.  If nothing else, the threat of legislation could be the stick that prompts a recalcitrant advertising industry to stop its foot dragging and re-engage in real negotiations.”

The letter cited numerous times that Leibowitz had predicted the implementation of Do Not Track by the end of last year and raised the possibility of legislation if the effort failed.  For instance, the letter noted:

“‘We are definitely at a critical point in whether folks will be able to come together and develop a real Do Not Track option for consumers,’ you told Politico in October. You said the lack of consensus was ‘encouraging the possibility of legislation — maybe not today, maybe not in the lame duck, but soon.’ You also told The New York Times, ‘It is time to drop some of the bluster and work toward compromise.’

“In November you used the bully pulpit again to tell Politico, ‘If by the end of the year or early next year, we haven’t seen a real Do Not Track option for consumers, I suspect the commission will go back and think about whether we want to endorse legislation.’ ”  

Federal Trade Commission Chairman Jon Leibowitz has given Google what Bloomberg News Service describes as an ultimatum to settle the agency’s antitrust investigation in the next few days or face a lawsuit.

Citing unidentified sources, Bloomberg reporter Sara Forden on Monday wrote:

“Google has been in discussions with the agency for about two weeks and hasn’t put any remedy proposals on the table, said the people, who declined to be identified because the negotiations are private.”

FTC staff have been investigating whether the Google has been abusing its dominance of the Internet for more than a year.  The staff has reportedly recommended issuing a complaint focused on Google’s search practices and also for misusing its patents to block rivals smartphones.

The FTC has told Google it won’t accept a resolution short of a consent decree, Bloomberg’s Forden wrote,  and is prepared to take action in the next week or two.

Google is continuing its usual happy-face spin. “We continue to work cooperatively with the Federal Trade Commission and are happy to answer any questions they may have,” Google Spokesman Adam Kovacevich told Bloomberg.

At first blush the idea that the FTC is holding out for a consent decree may sound reassuring.  For what it’s worth though, I’m a little concerned that a settlement  might not do enough.

Chairman Leibowitz is expected to step down from the agency soon.  There is speculation that in a nod toward his legacy, he might be willing to agree to a less than adequate settlement, just to be able to say the FTC got the Internet giant on his watch.

Franky, there is a similar concern among privacy advocates that there could be a willingness to accept a weak Do Not Track standard for the same reason.

If the Commission files a lawsuit, the FTC could proceed in its own administrative court or in federal court.  No decision has been made about the venue.

Meanwhile there was a development over the summer that might give Google pause.  The Commission has changed its policy and can now seek “disgorgement” — forcing a firm to surrounded profits as an antitrust penalty.  If the FTC goes that route, it might really concentrate the minds of the geeks in Mountain View.

And don’t forget the other side of the Atlantic.  The EU is pressing Google to resolve its antitrust concerns or face a formal complaint.  That, too, could come in a matter of weeks.

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John M. Simpson is a leading voice on technological privacy and stem cell research issues. His investigations this year of Google’s online privacy practices and book publishing agreements triggered intense media scrutiny and federal interest in the online giant’s business practices. His critique of patents on human embryonic stem cells has been key to expanding the ability of American scientists to conduct stem cell research. He has ensured that California’s taxpayer-funded stem cell research will lead to broadly accessible and affordable medicine and not just government-subsidized profiteering. Prior to joining Consumer Watchdog in 2005, he was executive editor of Tribune Media Services International, a syndication company. Before that, he was deputy editor of USA Today and editor of its international edition. Simpson taught journalism a Dublin City University in Ireland, and consulted for The Irish Times and The Gleaner in Jamaica. He served as president of the World Editors Forum. He holds a B.A. in philosophy from Harpur College of SUNY Binghamton and was a Gannett Fellow at the Center for Asian and Pacific Studies at the University of Hawaii. He has an M.A. in Communication Management from USC’s Annenberg School for Communication.