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Comment by ramboram | Hacker News Reader

I've been looking into GDPR and when a cookie consent is needed. In fact, there's no thing called "cookie consent". If you track a user, you have to get his consent before doing it, whether you use cookie consent or now. Ever since I joined HN, there's a lot of marketing going on here from privacy-first Google analytics alternative guys. I found this review showing Plausible and similar products using browser fingerprints and CName cloacking for user tracking, and they still promote those features.

I'd like to know your opinion on this. Do I still need to use a consent banner if I use these services?

Thanks.

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> If you track a user, you have to get his consent before doing it

This would mean any server-side analytics (looking at access logs, which include IP address and user-agent) cannot be used for analytics or tracking, since there is no way for a user to give/deny consent to a page that already has logged information on them.

If you're tracking an amorphous profile, how do you match the right person to the right data? Do you have to match the data to a unique person?

You obtain consent and then you log only if consent was provided. You can essentially use two logs, one for technical purposes (under legitimate interests you should be fine logging as long as those logs are only used for technical/debugging/abuse prevention purposes and the data is not kept for longer than necessary) and one for marketing/analytics purposes. You only log to the second one if consent has been given, and you only ever do your analytics on that second log and not the first one.

It's also probably a legitimate interest to retain data for marketing and analytics purposes, so long as that retention meets the same sort of guidelines. Marketing is explicitly highlighted as one of the applicable uses for legitimate interest.

Have you any specific document or decision in mind ?

Recital 47 (https://gdpr-info.eu/recitals/no-47/) explicitly states:

"The processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest."

It's also mentioned in Article 21 describing the right to object to processing using legitimate/public interest:

"Where personal data are processed for direct marketing purposes, the data subject shall have the right to object at any time… etc."

The ICO has some useful guidance on when it is an appropriate basis: https://ico.org.uk/for-organisations/guide-to-data-protectio...

One could argue that analytics purpose is not direct marketing purpose. My understanding is that as analytics can be considered as a usual/expected business process, it may use legitimate interests as far as it fulfill requirements (information of the process, the right to opt-out, ...). However, the problem is that analytics may be advanced analytics. Is the retrieval of Adwords parameters from a glcid allowed/expected ? Is the injection of historical behaviour or marketing segment allowed/expected ?

I would like to see more software having the option of just logging the users country and not the IP, and perhaps just as generic a user agent as possible (Just, is this Chrome, FireFox, Edge, whatever, but nothing else.)

for example for Nginx something like:

log_format logfmt '$remote_country - [$time_local] ' '"$request" $status $body_bytes_sent ' '"$http_referer" "$http_generic_user_agent" "$gzip_ratio"';

That would assume access to a GeoIP database, but it would be helpful.

$remote_country is interesting idea, you classify visitor into per-country "buckets". Although the buckets would not be of equal size. If you have a single regular visitor from a tiny country, $remote_country could uniquely identify them.

A similar idea would be to have built-in $remote_addr_hash8, $remote_addr_hash16 variables which hash IPv4 and IPv6 addresses down to 8-bit or 16-bit numbers.

There are hacky ways you can do some forms of anonymization already:

https://www.supertechcrew.com/anonymizing-logs-nginx-apache/

FWIW, CloudFlare can inject a cf_ipcountry header that does that. User-agent parsing is unfortunately more complex, with lots of false readings (not counting bots & crawlers).

The reality is that GDPR is not strongly enforced at the moment. This is not uncommon for Europe and may be a cultural differences with other places.

Those who have the intent to comply and are at least complying in spirit are not at any legal risk. Attitude matters.

And the spirit is obvious: get consent if you enable a third party to unique identify a user in reality. I.e. if it's private data or if you enable correlation across websites.

It's correlating and sharing you need consent for. Don't worry about a server log.

It is not about what you make possible. It's about what you do. Technically any sysadmin can access some information they should not. It's unavoidable.

But that's quite a far way from commercially exploiting databases of people without their consent.

Honestly they should just ban the sale of personal information. Most internet marketing vendors are not actually in the business of selling personal data.

Now the good ones suffer because of the bad ones. And the bad ones either pretend they have consent or find a way to get it.

I think that overall the GDPR law was good for privacy but a disaster for usability.

It was good for privacy, not because it's enforced or not and not because sites are showing cookie consents, but because it made the public more aware of centralization/privacy issues on the internet and companies a bit more careful with data processing. This law also resulted in many "privacy-friendly" alternatives for various services, which in the end led to a healthier market and improved data decentralization.

I don't have the answer, but the consent banners are interesting.

I have two browser plugins: "I don't care about cookies" and "Never Consent", I'm not sure what Never Consent doesn't technically, but the other one just hides the DOM element with the cookie thingy.

That means that I never see the "consent" banners so I can't click the "Okay" buttons. I should test to see how many sites just assumes OK to cookies because I didn't click "No".

On a positive note I do see more an more sites making it just as easy to say no to tracking as saying yes. Though sites are better at remembering a yes to tracking, compared to a no.

Not sure whether you mixed up I Don't Care About Cookies and the other one, But IDCAC does not just hide the DOM elements - it always gives full consent.

From their website [1]: By using it, you explicitly allow websites to do whatever they want with cookies they set on your computer (which they mostly do anyway, whether you allow them or not).

Which is fine for me, I use it with Cookie Autodelete, but if you don't, you should be aware of that.

[1] https://www.i-dont-care-about-cookies.eu/

Thanks, I used one at some point that just hides the element... Now I just use I Don't Care About Cookies and flush cookies when I close the browser.

But yes, something I need to be aware of.

Just FYI, tracking is so much more advanced than just cookies. Using IDCAC means you consent to them using any method of tracking you.

I think a lot of the confusion around the consent banner stuff arises from the 2002 EU ePrivacy Directive (ePD)[0] which long predates GDPR.

ePD introduced the idea of the cookie consent banners we see today.

While it was enacted in 2002, ePD didn't really start to come into broad legal force in many member states until ~2010ish (EU Directives are not like federal laws; instead they're implemented & enforced by individual member states separately).

GDPR's focus on prior consent makes consent banners in their popular format largely useless, but when GDPR came along, the intent was that PD should have been replaced by the accompanying EU ePrivacy Regulation (ePR)[1] to clarify this. ePR has been delayed, so we're in this ambiguous place.

[0] https://en.wikipedia.org/wiki/Privacy_and_Electronic_Communi...

[1] https://en.wikipedia.org/wiki/EPrivacy_Regulation

Not a lawyer, but you do not need a consent banner with their services.

This is as much about what information is available AND what you do with it. Browsers send information whether you ask/use it or not.

At a high-level (and not necessarily speaking about Plausible here cos I don't know the inner workings), it is ok for a service to use personal information (looking at the IP address here) if in a form that is not traceable back to a user, and not used for tracking individuals.

In this case the use of CNAME is fine, its just to stop the blunt blocking of JS etc that happens as a reaction. Its worth noting that GDPR does permit data collection for essential services and (there is some dispute/debate on this) basic site analytics can be considered essential services.

In regards to Plausible, they are commenting directly here and seem to be address all these concerns.

IMHO the blog post author sees a problem at the surface level but is not an expert - but for those of us more familiar with the legal framework behind this, the exceptions, and the distinctions of how information is used (and supporters of GDPR), what Plausible doing is good and compliant.

(To be clear; I'm not affiliated with them - am just supportive of GDPR friendly alternatives like this one)

Cookies aren't regulated by the GDPR[0] but instead by the ePrivacy Directive.[1]

Article 5(3) of that directive states that

"Member States shall ensure that the use of electronic communications networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia about the purposes of the processing, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user."

In other words, unless the cookies are strictly necessary to providing you with the service then you must provide users information about what the cookies are used for, and you must offer an opt-out.

(It's also worth pointing out the generality of this Directive, too: It doesn't only apply to cookies, but also to things like localStorage).

The ePrivacy Directive is, as its name suggests, a Directive which is addressed to member states of the European Union which have all written it in to domestic law.

In the UK, for example, it was implemented as PECR[2].

[0] The ePrivacy Directive does reference the old legislation that the GDPR replaces, so you should consider the reference in the ePD to Directive 95/46/EC as a reference to the GDPR. This means the standard of "consent" is the GDPR's standard now.

[1] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A...

[2] https://ico.org.uk/for-organisations/guide-to-pecr/what-are-...

Cookie consent is (mainly) a different EU directive and not part of GDPR. It will be newly regulated by the - long delayed - ePrivacy directive.

"Cookies are an important tool that can give businesses a great deal of insight into their users’ online activity. Despite their importance, the regulations governing cookies are split between the GDPR and the ePrivacy Directive." https://gdpr.eu/cookies/

The cookie banners come from the ePrivacy Regulation and are supposed to inform you that the website is storing data on the your device and that you can opt out (not in) of it.

Consent is required by GDPR but not for the technical circumstance that you store a cookie but that you use it for profiling. Some lawyers argue that basic web performance is legitimate interest especially in e-commerce, others don’t risk it and ask for consent (which is strictly opt in).

If you're tracking a user in the EU, you need consent. The GDPR doesn't cover the 'how' -- just that it needs to be done. So, if there's tracking of any kind, you'll need consent.

Applies off site as well -- pretty much every cold email tracking software, like Yesware, is in violation of GDPR, since you didn't get the recipient's consent to track their opens and clicks.

Consent is one of the legal bases for processing personally identifiable information[1]. There are five more, among which "legitimate interest" can cover a variety of cases.

[1] https://ico.org.uk/for-organisations/guide-to-data-protectio...

Yeah, but the "legitimate interest" implies that the processing is necessary (because it override your consent). In which context and what kind of analytics is really necessary ? Analysis of the incoming channels ? Understanding if there are some technical problems ? Comparing engagement from different marketing solutions ?

I'm working on that market and find that interpretation is quite difficult as soon as you have multiple actors around the table. Example: because recommendations from DPAs are not exactly the same, then you may have different requirements of the same company from different country legal department within the UE.

One interesting thing about consent under the gdpr is that users can later withdraw consent, and if that is your only legitimate reason, then you have to get rid of all the related data. It's best if you can show that there are multiple legal bases.

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