Whoops! Ask.com complaint to FTC is an EPIC mistake

Posted by Declan McCullagh

A afire bandage of pro-regulation aloofness groups fabricated a adventurous accomplishment a few canicule ago to argue the Feds to forcibly cull the bung on a new affection on the Ask.com chase engine.

The groups, which accommodate the Electronic Aloofness Advice Center and the Center for Digital Democracy, told the Federal Barter Commission on Saturday that that a academic admonition was all-important to arrest some allegedly pernicious practices on the allotment of Ask.com.

The alone problem? Those allegedly pernicious practices don’t absolutely exist.

Ask.com already had voluntarily afflicted the way it handled its new aloofness affection weeks earlier. This self-appointed aggregation of advanced nonprofits, which additionally includes Customer Action, was benumbed to accompany to amends a botheration that had continued back vanished (and that’s bold it existed in the aboriginal place).

By way of background, this accurate aggregation disagreed with the way Ask.com implemented a aloofness affection declared AskEraser. The abstraction is that instead of recording your chase agreement for a year or two the way added chase engines do (see our analysis from August), Ask.com was alms never to save them at all.

AskEraser is angry on or off by a articulation on Ask.com that changes the amount of a cookie titled, analytic enough, “askeraser.” Originally, back AskEraser launched aftermost month, the amount of the cookie was set to the time that the account was activated.

Instead of applauding the abstraction as conceivably awry but bigger than the cachet quo, EPIC et al. formed themselves into a accompaniment of aerial dudgeon. (These are the aforementioned groups that already claimed Google’s Gmail account was illegal.) They beatific a letter to Ask.com on December 19 adage the timestamp–down to the second, but not a atom of a second–could be acclimated as a affectionate of different tracking number.

They had a point. If Ask.com encounters a thousand bodies signing up for AskEraser per second, the abeyant aloofness advance is basal (everyone has the aforementioned timestamp). If alone one being per additional signs up for AskEraser, however, the abeyant aloofness advance is college (the timestamp is unique).

Which is why Ask.com afflicted the cookie amount in aboriginal January to be aloof “off” or “on”–meaning there’s no best the aforementioned affectionate of aloofness issue. Unfortunately for the pro-regulatory aloofness activists, they never absolutely arrested afore battlefront off their this-illegal-practice-must-be-halted cannonball on Saturday. It said that the FTC must:

- Order Ask.com to abjure AskEraser from the marketplace.

- Order Ask.com to cease agreeable in and arbitrary ambiguous barter practices.

- Require Ask.com, as a action of alms AskEraser in the approaching to:

a) Cease application the opt-out cookie

b) Cease creating a Persistent Identifier on customers

c) Provide allusive apprehension if the account will be disabled…

- Order Ask.com to annul all ahead retained information, afore the accomplishing of AskEraser.

- Order Ask.com to acquaint all accepted users of AskEraser, by arresting apprehension displayed on the Ask.com Web site, that they should annul the Ask.com AskEraser cookie.

And so on. Now, I accept that anyone can err. And in actuality I’ve accepted the association at EPIC to be careful, honest, and principled, alike if I may disagree with them from time to time. I anticipate this is an honest mistake.

But this adventure is advantageous to agenda because it exposes how the Washington convenance of advancement groups application federal agencies to demolition political enemies can be beggared of facts and logic. (From EPIC’s perspective, this was declared to be a no-lose situation: it’s a win if AskEraser is taken off the market, and if the Republican-led FTC refuses to do so, the FTC and the Republican appointees can be airtight as comparatively acute to “privacy interests.”)

For his part, Ask.com agent Nicholas Graham told me on Tuesday:

EPIC’s weekend filing apropos AskEraser is both awry and unfortunate. It’s adverse in the faculty that Ask.com approved to appoint in a effective chat with the accumulation aftermost week, and was rebuffed. Aloofness is an affair that demands accord and affiliation amid online companies and advocates, for the account of all consumers. Ask.com’s accord with the Center for Democracy & Technology is proof-positive of that.

EPIC’s filing is awry in the faculty that the certificate they filed is absolutely inaccurate, and artlessly shows a axiological confounding of the functionality of our product. In addition, abounding of the issues they accession are outdated, while others are absolutely bearded from the outset, and others accord with changes that Ask.com already fabricated to AskEraser weeks ago, and were after acquaint about on our website.

EPIC Executive Director Marc Rotenberg replied to me in e-mail on Tuesday evening:

If Ask has now anchored the problem, (1) that agency we were right, (2) they should accept responded to our letter. But that doesn’t break the botheration with opt-out cookies, which I anticipate you will accede is a absurd access that does not scale, i.e. it requires users to accumulate accolade for all the companies they don’t appetite to be tracked by. Alike the FTC should be able to see the problem.

Rotenberg is appropriate that application opt-out accolade may not be the cleanest architecture technique. If I were coding it, I’d accept created a appropriate “ask.com/eraser” site–the aforementioned way Google set up its google.com/unclesam government chase — or a private.ask.com subdomain. No accolade would be needed.

Then again, I’m not buried to how Ask.com’s software is advised and the trade-offs that would be involved. Added to the point, probably, companies should accept adaptability in how they try to action new aloofness features–and it’s hardly bright that a agglomeration of abiding Washington assembly or FTC bureaucrats apperceive added about scalable software engineering than, well, absolute software engineers. As continued as Ask.com is honest about what it’s doing, and it seems to be in its FAQ, it should be accustomed to accumulate on alms new features.

There’s one added catechism account asking: if EPIC and CDD and their brainy allies believed they had such a able case, why not book an absolute accusation instead of allurement the FTC to undertake an analysis that would acceptable booty bisected a year or added to complete?

After all, EPIC is staffed by attorneys, and their complaint to the FTC alleges that AskEraser is, above any doubt, “an arbitrary business practice.” If true, that would breach accompaniment customer aegis laws, including California’s area 17200, which says clandestine attorneys may sue a aggregation agreeable in “unfair” business practices.

I anticipate I apperceive what the acknowledgment is. Judges accept little backbone for plaintiffs that decay their time. If this had been a lawsuit, a adjudicator ability able-bodied accept fined EPIC et al. for crumbling his time with barmy claims, and its agents attorneys ability alike accept been accountable to alone sanctions.

Lawsuits, in added words, accept risks. Battlefront off an inaccurate letter to the federal bureaucracy, on the added hand, alone after-effects in the sender attractive a little silly. The abutting time you see them accusatory to the FTC about some declared wrongdoing, bethink these attorneys’ odd abhorrence to litigate.