We don't need to imagine a world like that, because it has nothing to do with what we are talking about.
Let's stick to the real world. The EU implemented a law. Everybody is scared of the power of the government, so they implemented what they thought was the intention of the law, to avoid prosecution. The mom-and-pop flower shop down the street could care less about making troll political statements about technical internet topics.
Turns out, the law had stupid unintended consequences. Was the person who designed it stupid? Or is the entire world stupid?
If your answer is "the entire world is stupid," then I'd argue you don't understand how the field of design is supposed to work.
No, they didn't. They implemented something that they thought allows them to continue with the practices that the law was specifically designed to combat.
The user has very little motivation to accept tracking. The web site has a lot of motivation to track the user (because personalized ads = more money).
Thus, web sites make saying no as difficult as possible, while making saying yes as easy as possible.
A 100% compliant, user-friendly implementation would be showing non-personalized ads, then occasionally replacing one of those ads with a banner "want to receive ads that are actually relevant? click here to enable personalized ads" (which would lead to an informed consent dialog and set a cookie that would then apply to all web sites that use that ad provider).
But pop-ups coercing the user to consent are more profitable.
This could be fixed by enforcing the actual law (punishing the companies that tried to weasel out of it and processed data without valid consent) so that trying to weasel out of it is no longer a valid strategy.
The same companies have their customers convinced that they need data collection to turn a profit.
As a result we see all kinds of stupid attempt to circumvent the law because an entire industry of shady data collectors and brokers have convinced businesses that the only way of making money online is by tracking people.
The basis of your argument is: All data collection is bad.
Therefore, in your model of the world, an evil conspiracy of bad actors are looking to strategically undermine the law with various dastardly convoluted schemes. I understand why you're arguing that, given the premise you're starting with.
However, the majority of business on the internet are not doing evil things with your data. They simply want to better target their offerings to their customers, allow for you to keep items in a shopping cart, etc. If they are providing better services to their customers, they make more money and the customers are happier. It's a win win for everybody involved.
Could it simply be that, most businesses put cookie popups on their sites because they don't want to get fined? Not because they are embroiled in an elaborate scheme to undermine the law?
Could it be that the EU should have created a smarter law that would actually help people be more aware of data tracking? Instead of stupid popups?
I wouldn't be so sure. There aren't that many advertising and analytics companies, but they make products that are widely used (and clearly misused) everywhere. The websites using such tools were never told that they could avoid having the banner if they just didn't have tracking cookies.
As a user I don't want anyone to "better target me" - no single exception. Gosh I miss the time where we just burned the McDonald's...
There's no need to straw man secret cabals of conspirators, when it's just business. (Or if you want to get political, capitalism). When big tobacco companies pour money into lobbyists, fund skewed studies, and buy ads to flout anti-smoking legislation, no one calls it conspiracy. Businesses are incentivized to respond in certain ways.
They can do it without the cookie notice. For example, Amazon can track what I'm looking at on their site and what I'm buying and store it to their database. They can use this information to offer me what they think I'll like. Also, another user-friendly approach would be for a site to ask me to select categories/topics that I like. Whatever it is, GDPR gives me a right to export the data, review it, and ask for it to be deleted if I don't want the site to have it anymore. No need for cookies in this scenario. What they need cookies for is when one site wants to track what I do on other sites.
> allow for you to keep items in a shopping cart
This is a functional cookie and there's no need to ask for consent to store a shopping cart. This is just a perfidious argument that data tracking companies use to ridicule the law.
> Could it simply be that, most businesses put cookie popups on their sites because they don't want to get fined? Not because they are embroiled in an elaborate scheme to undermine the law? Not because they are embroiled in an elaborate scheme to undermine the law?
The law is very clear about when you need to ask for consent and when you don't need to ask for consent. Most sites implement it in a wrong way, many of them use deliberate dark patterns, for example, when you deny cookies you get a loading spinner that spins for a couple of minutes. These are all attempts to condition the user into avoiding pressing the "slow" button.
Using user’s data within the confines of a web app is usually OK so we can put just small much smaller guardrails up to keep companies respecting the public good.
I generally just don’t like my data shared with third parties. A single web site can literally pass your data on to hundreds of companies (as discussed in the book on Surveillance Capitalism).
I don't think that's stupid, nor unintended.
That's not what actually happened. Companies got scared that the law would impact their business model, for which the law was directly design to impact, and asked lawyers to find the minimum change which could be argued as being in compliance.
When you ask lawyers to find a solution to a problem you do not get the intention of the law. If you ask a lawyer to find a solution to tax law you don't get the intention of the tax law, you get tax avoidance, the direct opposite. And if you ask a lawyer about consent, as I have done during conferences, you get straight answers like "People can consent to a 20 page EULA they have not read or have the legal education to translate".
It not that the word is stupid or that the person who designed the law is stupid. It just happens that if you pay a lot of people who have studied and spent a large part of their life to find clever interpretations of words what you get is a clever interpretation that may or may not be what a judge will see.
To make a quick parallel, a bunch of lawyers for companies are arguing that while the company is having millions in profits and giving out a lot of dividends to shareholder, the company is at the same time in "economical crisis" and thus deserve government grant money in order to handle corona. The department in charge of giving out the money asked its lawyers and they agreed, but the politicians are now a bit upset since they disagree. And so now everyone is arguing/blaming each other and discussing if they should change the law to specify what an economic crisis is and isn't and if the change to the law should be retroactive or not.
It sounds like you're saying the lawyers are smart, but the government is still stupid.
Why didn't the government have any lawyers involved in writing the law?
Isn't that pretty...stupid?
> If your answer is "the entire world is stupid,"Only by using a very loose definition of "implemented" sans common implementation measures like clarification and enforcement.
> implementation measures like clarification
No directive needs clarification to be implemented as law. That's the most absurd thing I've heard all year.
You mean putting trust that a website behaves by implementing its own popup system versus enforcing it on the browser side with a single implementation? Doesn't sound sane to me.
Why don't we implement a law where visitors cannot enter your house when you are not at home, unless you consent. That way we can get rid of locks.
Very sane.
Very sane.
Unless of course you block me from your browser, then I can't do anything.
Trying to say that the law is bad because it doesn’t conform to some idealised version of it you had in your head doesn’t mean the law is bad.
This is not only sane, it is very obviously the only way it could be done. Remember, the law isn't about cookies or headers or anything specific: it is a law about user tracking. You're delivering JS that paints a font in a hidden area of the screen? It's then measuring the results and reporting data back to you to track this particular user? Then you need to ask for consent. The browser can't possibly know the intent of the code it is running, so the browser can't be made responsible for protecting user privacy.
Using fingerprinting for tracking is not GDPR compliant.
If you hire Harry Potters friend to create a totally magic way to track users and collect data from them GDPR still covers it.
We already have P3P to allow websites to declare how they want to use your information. European legislation should have focused on leveraging these existing tools and protocols to give control to the user, instead of annoying them with endless pop-ups.
1. https://en.wikipedia.org/wiki/Privacy_and_Electronic_Communi...
Also it seems either I or someone else misread the context. I'm in the broader GDPR context while someone else seems to be in the older cookie law context.
A law that doesn't take into account how people react to is not "perfectly sane". This was the obvious outcome before it passed.
Law is a back-and-forth process; you can’t just create a perfect law on day one then stop evolving.
FTFY
Every time you see one of those cookie popups it is a sign, right there front and centre, that the website you are trying to use is trying to play fast and loose with your data.
Complaining about these notices would be like complaining that restaurants are forced to put up a sign on their front door "Kitchen employees don't wash their hands" when they get caught not doing so.
Brilliant. I might copy and reuse that.
You can still display advertising, that also doesn't need consent.
You just can't collect and process people's data that isn't required for providing the service. If a site displays that notice, it's because they're attempting to do more with your data, or collect extra data, than is strictly needed for the service.
Thus, these cookie disclaimers are like Proposition 65 warnings in California. They're everywhere so people ignore them.
I run websites, and I don't feel in any way worried about it personally.
Are you familiar with Proposition 65 in California? Any product of business location that has any detectible amount of carcinogens needs to disclaim that it potentially contains carcinogens. Among other things, gas stoves and roasted coffee both contain trace amounts of carcinogens. So most restaurants and coffee shops display Proposition 65 warnings. Said warnings have become so ubiquitous that nobody cares about them. The same scenario is playing out with cookie disclaimers.
> Except there's no such thing as a cookie disclaimer as I said in another comment. Extra tracking/data processing has to be opt in, and you have to provide the service to the user even if they don't opt in, so you can't just throw up a notice that says you might not be compliant because you still need to be compliant.
Yeah, they do exist. And you can find them on plenty of sites that block content unless the disclaimer is accepted. You may be of the mind that this is not complaint with the legislation, but reality demonstrates otherwise.
> Prop 65 is different. The cookie law is like saying "if you sprinkle extra carcinogens in your product then you need to disclose it".
This is making the same error as the washing hands analogy. This ignores the fact that cookies are necessary to power user-facing features.
Except there's no such thing as a cookie disclaimer as I said in another comment. Extra tracking/data processing has to be opt in, and you have to provide the service to the user even if they don't opt in, so you can't just throw up a notice that says you might not be compliant because you still need to be compliant.
> Are you familiar with Proposition 65 in California?
Yep, it's irellevant.
I don't know if you're doing this deliberately or not at this point because I've said it so many times.
You. Are. Allowed. To. Use. Cookies. Under. GDPR.
There are times you need to ask for consent, but for login cookies, shopping carts etc. that follow some relatively simple guidelines, you don't need to ask for permission.
Do you really find that so hard to understand?
Until a government bureaucrat decides that your usage is not necessary and they threaten you with a fine.
You are not the one enforcing these laws. What you think is a reasonable interpretation of these "relatively simple guidelines" is no guarantee that a government commission is going to reach the same conclusion. Do you really find that so hard to understand?
Many people click "add to cart" without logging in because that is the service they want. Nobody voluntarily clicks "track and analyze my activities on this site", because that is not a service people want.
You realize that in order to implement "add to cart" you have to track their activity on the site? That's what the cookie is for. To track customers and persist their cart. If you can't track customers then you can't associate them with their cart.
As far as analyzing activities, what is any isn't allowed is murky. Is it okay to do A/B testing and see their impact on sales? This requires tracking and analyzing user activity, but isn't necessary to provide the service. But it is necessary to actually determine whether changes to the service are positive or negative. So do you throw away A/B testing, do A/B testing and risk fines, or throw up a cookie disclaimer?
> If you can't work out what data is and isn't required for the functioning of your site then perhaps you shouldn't be running one.
I'm more than confident in developers' abilities to know what is and requires. I'm dubious of government bureaucrats' abilities of doing so.
First, you can't avoid solving the murky analysis. You must be able to specify in clear language what personal data you're using for what purpose and which specific paragraph of the GDPR gives you the legal basis to do so.
Are you using that data for A/B testing because it's a legitimate need where you don't need consent or because the user consents to it? Well, you have to decide before implementing that disclaimer, because the disclaimer should clearly state that answer!
Furthermore, if you decide that some use case does not fit the legitimate need criteria and you need consent, then a "cookie disclaimer" does not reduce the risk of fines - because a disclaimer does not collect opt-in consent, it can (at best) record acknowledgement, so if you need consent but only have a disclaimer, then that still risks fines.
On the other hand, if you trust your developers to know what is required and what's not, and you have documented it properly (because it's not just a good idea, it's mandatory), then you should be able to run that documentation through your local data protection authority to validate any doubts, that's part of their job, and wherever I have seen them work it's something they eagerly do.
Sure, the cart is perhaps a trivial case. But persistent tracking is also used to prevent abusive behavior, and other things that aren't strictly necessary. The risk that someone might try to claim that these are unnecessary far outweighs the cost of throwing up a cookie disclaimer. Thus, cookie disclaimers become pointless through their ubiquity.
Reply to your comment, since HN is rate limiting my work VPN:
> That's not it works. Someone complains to the Information Comissioners Office (ICO). ICO determine if the complaint is valid and will get in touch with the site owner to help them come into compliance.
And then they get sued if they don't come into compliance. This is just elaborating extra steps.
> There is no such thing.
> You have to make unecessary data collection and tracking opt in. You can't have a notice that says "we might do x unecessary data collection and/or tracking" and make the user click it or go away. You need to be compliant, or you need to not serve the European market.
Right, and websites don't display content unless this supposedly unnecessary data collection is opted into. Because nobody wants to risk being on the wrong side of ambiguous restrictions on necessary and unnecessary tracking. You insist that websites have to display content regardless. Reality demonstrates otherwise - this is a practice sites do all the time.
Again, cart's aren't actually necessary. They make it easier for users to buy multiple items, but you can make cart-less checkouts by having customers select all items on a single page. Thus, by adding cookies to implement a cart without consent you have violated user privacy for reasons unnecessary to provide your service.
That's not it works. Someone complains to the Information Comissioners Office (ICO). ICO determine if the complaint is valid and will get in touch with the site owner to help them come into compliance.
> Or you can just throw up a cookie disclaimer to cover your ass.
There is no such thing.
You have to make unecessary data collection and tracking opt in. You can't have a notice that says "we might do x unecessary data collection and/or tracking" and make the user click it or go away. You need to be compliant, or you need to not serve the European market.
In some countries your competitors or some other third parties can just directly send you a cease-and-desist letter if they believe you're violating some law.
Even if that letter turns out to be unfounded because it turns out that implementing a shopping cart using cookies without an explicit consent is a legitimate use case, they're quite a bit more of a hassle to handle than your supposed friendly ICO just "get[ting] in touch with the site owner to help them come into compliance".
So one more reason to err on the side of over-caution and just put up a popup for any kind of cookie...
If you don't come into compliance with data privacy laws after being helped to do so by the ICO, they yes, you deserve to end up in court.
> Right, and websites don't display content unless this supposedly unnecessary data collection is opted into.
That's literally not allowed under GDPR. You can't avoid the GDPR by doing soemthing that is in violation of the GDPR. It's like trying to avoid getting a speeding ticket by going faster.
> You insist that websites have to display content regardless. Reality demonstrates otherwise - this is a practice sites do all the time.
Yes, and they're not compliant with the GDPR. Not all sites will get the tap of the ICOs hammer though. Some are going to be too hard to enforce (non-EU only entities for instance) and some just won't get complaints.
> Again, cart's aren't actually necessary.
Nope, they are very much allowed.
> Thus, by adding cookies to implement a cart without consent you have violated user privacy for reasons unnecessary to provide your service.
Nope, totally incorrect.
Well, it worked for the Dukes of Hazzard, and it seems to be working well for Facebook et al so far...
[0]: https://www.cookielaw.org/wp-content/uploads/2019/12/icc_uk_...
[1]: https://www.engadget.com/2020-01-13-websites-not-following-e...
However, that law does state that you don't need to get permission if the cookie is:
"Strictly necessary to provide a service explicitly requested by the user"
A cookie that remembers your shopping cart if you leave the site and return to it later. A cookie that remembers any preference you register if you leave a site and return to it later. A login cookie that persists after you leave the site doesn't explicitly require consent, but if you don't get it, then you are technically deviating from the guidelines that "[strictly necessary cookies] will generally be first-party session cookies" and that session cookies are "temporary and expire once you close your browser (or once your session ends)". If you had a persistent auth cookie, it would be reasonable to lean towards consent based on the published guidance.
> Preferences cookies — Also known as “functionality cookies,” these cookies allow a website to remember choices you have made in the past, like what language you prefer, what region you would like weather reports for, or what your user name and password are so you can automatically log in.
> To comply with the regulations governing cookies under the GDPR and the ePrivacy Directive you must:
> Receive users’ consent before you use any cookies except strictly necessary cookies.
Your stated understanding of when consent is and is not required is simply incorrect.
Yup.
> login cookies
Put an unchecked "Remember me" checkbox on your login page and link to your cookie/privacy policy. This is a good idea anyway as the user might be on a shared computer.
> Preferences cookies
Allowed to be persistent as long as they don't contain user identifiable information.
> A cookie that remembers your shopping cart if you leave the site and return to it later.
I couldn't find any specific guidance on this, so it seems reasonable to use a cookie that might last a few hours or so, then have a talk to your local Information Commissioners Office if someone complains.
Emphasis mine:
However, such devices, for instance so-called ‘cookies’, can be a legitimate and useful tool, for example, in analysing the effectiveness of website design and advertising, and in verifying the identity of users engaged in on-line transactions. Where such devices, for instance cookies, are intended for a legitimate purpose, such as to facilitate the provision of information society services, their use should be allowed on condition that users are provided with clear and precise information in accordance with Directive 95/46/EC about the purposes of cookies or similar devices so as to ensure that users are made aware of information being placed on the terminal equipment they are using. Users should have the opportunity to refuse to have a cookie or similar device stored on their terminal equipment. This is particularly important where users other than the original user have access to the terminal equipment and thereby to any data containing privacy-sensitive information stored on such equipment. Information and the right to refuse may be offered once for the use of various devices to be installed on the user's terminal equipment during the same connection and also covering any further use that may be made of those devices during subsequent connections. The methods for giving information, offering a right to refuse or requesting consent should be made as user-friendly as possible. Access to specific website content may still be made conditional on the well-informed acceptance of a cookie or similar device, if it is used for a legitimate purpose.
Where are you getting that some cookies don't require consent?
> Strictly necessary cookies — These cookies are essential for you to browse the website and use its features, such as accessing secure areas of the site. Cookies that allow web shops to hold your items in your cart while you are shopping online are an example of strictly necessary cookies. These cookies will generally be first-party session cookies. While it is not required to obtain consent for these cookies, what they do and why they are necessary should be explained to the user.
See the "Cookies and the GDPR" section for discussion.
> Preferences cookies — Also known as “functionality cookies,” these cookies allow a website to remember choices you have made in the past, like what language you prefer, what region you would like weather reports for, or what your user name and password are so you can automatically log in.
and further down the page a little bit:
> Receive users’ consent before you use any cookies except strictly necessary cookies.
I sincerely hope that nobody reading this thread follows any of your terribly incorrect advice.
OK, I am willing to be educated, point me at the place in the regulations this is discussed.
> Not only is your interpretation of the regulations very highly opinionated, but it’s just outright wrong on some points.
s/opinion/interpretation/
> The guidelines also state that even for Strictly Necessary cookies, the site must explain why they are necessary, something your canonical example of a good site fails to do.
You don't need to do this in a cookie popup consent dialog. You are welcome to carry on thinking this if you want to though obviously.
> OK, I am willing to be educated, point me at the place in the regulations this is discussed.
It is not discussed, it is stated very explicitly:
>(66) Third parties may wish to store information on the equipment of a user, or gain access to information already stored, for a number of purposes, ranging from the legitimate (such as certain types of cookies) to those involving unwarranted intrusion into the private sphere (such as spyware or viruses). It is therefore of paramount importance that users be provided with clear and comprehensive information when engaging in any activity which could result in such storage or gaining of access. The methods of providing information and offering the right to refuse should be as user-friendly as possible. Exceptions to the obligation to provide information and offer the right to refuse should be limited to those situations where the technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or user. Where it is technically possible and effective, in accordance with the relevant provisions of Directive 95/46/EC, the user’s consent to processing may be expressed by using the appropriate settings of a browser or other application. The enforcement of these requirements should be made more effective by way of enhanced powers granted to the relevant national authorities.
https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:...
If you want to persist any preference information, you must get explicit consent. Whether you use that information for tracking or not, or whether it is combined with PII or not, has absolutely no bearing on your obligation. The act of persisting that information in the users browser requires consent. As this is a directive, it will be implemented independently by every member state, so if you want specific guidance for a specific state, you'll have to look it up. I linked the UKs guidance on this to you above, which you ignored. The facts are:
> If you want to persist any preference information, you must gain explicit consent
> The existence of cookie consent dialog is not a sign of malfeasance
> Lack of a cookie consent dialog is not a sign of lack of malfeasance
> Your stated interpretation of the regulations is very highly opinionated, and not supported by any jurisprudence
> Some of your stated interpretations are just demonstrably wrong
> The actual regulation is almost never followed
Based on those facts I would argue that the regulation has provided no benefit to the public at all, and has simple created a global nuisance that we all have to put up with now.
The thing is, wait staff need to use pens/keyboards to do their job. It's part of what it is to be a waiter or waitress.
GDPR doesn't make website owners ask people if they can use cookies, you can use cookies just fine without asking people. You have to ask people when you want to collect or process more data than is required to provide the service.
The point of the analogy was to make a comparison between being clean with data and being clean with food.
I don't have any first-hand knowledge here, but my guess would be that the corporate lawyer's recommendation is always going to be "just get consent for every cookie". The alternative is to risk lengthy litigation over whether specific cookies required the consent. If they ask every time, they can avoid that nightmare.
Because of this, the notice doesn't really serve any purpose of a signal of sysop goodwill. Virtually every business large enough to have lawyers will add it where there's the possibility it'd be required, regardless of the cookie's intention.
Well-intended law that causes many negative side effects is still bad law, just as well-intended software may very well still be bad software.
Some lawyers make restaurants get waivers from customers before they order steak that's not fully cooked. It doesn't mean it's necessary (and I would definitely not eat at one).
> If your answer is "the entire world is stupid," then I'd argue you don't understand how the field of design is supposed to work.
And I think it really sums the argument up. Good design and engineering is about building something that performs its function efficiently, reliably, and unobtrusively. If something is widely misunderstood or misused, it's a design flaw.
"Blame the [law-abiding] citizens" is just as much of a cop-out as "blame the user".
In this case, however, it's not a case of general misinterpretation or misunderstanding. It's a case of the law creating very strong -- like significant-millions-of-dollars-on-the-line strong -- incentives for every significantly-sized company to harass every visitor. That's a pretty huge flaw.
It sounds like your response is basically "well if they aren't doing anything wrong, they have nothing to fear! just go to the tribunal and prove that every cookie is innocent." And in that case, please refer back to pembrook's quote above.
Let's imagine a world where a government force car builder to add speed limiter to cars. The car builders all decides to just cut the engine if you go over the limit. Will you say the law is bad or that car makers are trolling everybody ?
It's the same for this law. But curiously everybody is prompt to say that the law is bad. The reality is that a majority of internet actors are bad and are just trolling us.