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Comment by whimsicalism | Hacker News Reader

Much of the GDPR is fine and I think we are right to crackdown on cross-website tracking, but the recent attempts in Europe to basically ban behavioral ads of all kind (a reversion to newspaper style ads) is, in my view, clearly a protectionist effort aimed specifically at American companies because Europe feels they cannot compete (of course missing the fact that the adhoc, ex post facto & bill of attainder-style of regulation in Europe is a large part of the story of why they have been unable to compete)

There are lots of small, niche businesses that literally could not exist without this targeting.

e: Is the discussion in this thread really so without value that it should be hidden?

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The article is quite clear on what the issue is. Meta needs explicit consent to do this kind of targeting. With consent, there is no issue. The tracking itself is not illegal, but doing it without consent is illegal.

Yes, except that Meta is being legally compelled to provide the services regardless of whether the user consents.

They are basically being forced to separate the part of their business that actually makes money from the part that users like and then forced to lose money on those users.

I would be fine about laws requiring facebook to be up front and clear about how they are using this data, but mandating free rider status seems a step too far.

> Yes, except that Meta is being legally compelled to provide the services regardless of whether the user consents.

I mean, obviously they are compelled to do that and this is completely fine.

As users people should not be blackmailed into accepting psychological manipulation in their lives, just to be allowed to use a service. If Facebook's model for profit is so bad, that they cannot profit without manipulation, then perhaps their whole business is a shady one and they should start asking for membership fees. I could not care less, whether they need their pesky ads or the data from people viewing and interacting with them. Without consent they don't belong on the users' screens, end of story. If they cannot do business ethically, I wish they would not do business at all.

> I would be fine about laws requiring facebook to be up front and clear about how they are using this data, but mandating free rider status seems a step too far.

It has nothing to do with "free riding". They offer a service and that service should be worth its weight to the users. If it isn't, then apparently it is not a good enough service. To get back the money through the back door, by utilizing manipulation of users and spreading hate-speech for engagement metrics is not OK.

I think the logic of people not wanting their data/actions used for ad targeting being "free riders" is a step too far. Just target ads based on data I'm willing to be targeted on. Ask for it explicitly and I'll give the data (location, interests, whatever). But don't use the fact that I looked too long at a clip of a guitar on instagram to show me a targeted ad for a guitar in my facebook feed.

I didn't say that people who don't want to use their data for ad targeting are free riders, but they do become so when Meta is compelled to provide them services even if it is at a loss. It is literally definitionally free ridership.

Meta is free to charge for the services they provide. The EU isn't mandating that they provide services at no cost to the user. It's Meta's choice to finance those services with ad money.

“The prevalent regulatory approach in Europe is that currently advocated by the European Data Protection Board ('EDPB') in its Guidelines 05/2020 on Consent under Regulation 2016/679 whereby the EDPB provides in no uncertain terms that '[i]n order for consent to be freely given, access to services and functionalities must not be made conditional on the consent of a user to the storing of information, or gaining of access to information (paragraph 39 of the Guidelines)'." [0]

There was a recent decision in France suggesting otherwise, but this is not the opinion of the primary EU regulatory guidance nor has it been seriously tested. Either way, it will become fully illegal to refuse under the DMA.

[0]: https://www.dataguidance.com/opinion/france-cnil-opens-door-....

What I mean is that I find the idea of giving users the impression that they are giving ip data for something else (For social network use) but using that data for ad targeting is wrong. And I agree with the GDPR (non-french interpretation) that services should not be conditioned on that use of their data. And I STILL don't think it's free ridership. They can show ads all they want. But they can't target them using data they didn't agree to. What it all comes down to is I don't think people should be ALLOWED to make the transaction of service-for-targeting, at all.

I agree with your first statement, but your second statement means that you think FB should be compelled to serve free riders. If you are being compelled to serve users that are unprofitable, a clear implication of the GDPR, then you are compelling free ridership. The difference between targeting and not is the different between net profit or not for many users.

I think the end game is that if ads are generally NOT targeted based on a huge volume of information, then the pay for ads with less targeting will go up. During a transition those who show pinpoint targeted ads while others don't will make more money. But eventually if the whole 2000-2025 era of ad targeting is confined to the historybooks, then we could have a better internet. And the amount of ad spend in total will be unchanged (perhaps some of money will return to print/tv etc. since internet ads will be relatively less effective). But the bottom line is I think it SHOULD be profitable to show ads with less targeting, not that it WILL be. And I think regulators have the power to ensure that this is the future.

> The difference between targeting and not is the different between net profit or not for many users

I don't think it's a bad idea to have regulation that makes entire regions of an industry unprofitable over night, if that's what it takes.

> And the amount of ad spend in total will be unchanged

Citation very very much needed as that is not at all what standard economic theory would predict.

As I said, there are lots of niche small businesses that literally could not survive without targeted advertising so that demand goes away as soon as these bans go into effect.

> I don't think it's a bad idea to have regulation that makes entire regions of an industry unprofitable over night, if that's what it takes.

Yes but I think if the choice were actually presented as “pay for FB or repeal this regulation” and the EU had a referenda on it, the regulation would be banned. The only way this is getting through is because the public is being convinced that they can have their cake and eat it too. They might be right, but only because they are being subsidized by users in the rest of the world.

> Citation very very much needed as that is not at all what standard economic theory would predict.

That was assuming that the total ad spend is constant as a fraction of revenue and that revenue would be unchanged. If less effective ads overall would lead to lower revenues then the ad spends would shrink. But they would shrink equally for everyone, at least.

> there are lots of niche small businesses that literally could not survive without targeted advertising

There is nothing banning targeting. The problem is using info that users don't know/think is used for targeting, and using it for targeting. I'd be happy to take a 200 question survey as a condition for using facebook, where they ask me about my hobbies and whereabouts and clearly say it's for ad targeting. Obviously I could say "I'd rather not tell" instead of "I like guitars", but in such a scenario I'd happily give up my targeting info. But I don't want to be shown a guitar ad because I looked at one on an unrelated site with a facebook tracking pixel on it. It's absolutely dystopian.

> public is being convinced that they can have their cake and eat it too.

Yes I'm sure many think that. But I think the only way of changing the status quo is through heavy handed regulation and making initially impopular decisions and risking the death of a lot of business in the process.

> If you are being compelled to serve users that are unprofitable, a clear implication of the GDPR, then you are compelling free ridership.

Facebook are the ones who've structured their business like this though — they could profitable with a subscription model instead, they've just chosen to make their product free at the point of use.

Exactly. There is no one proposing anyone provide anything for nothing. It's only one particular transaction that is disallowed. You can show dumb ads, use subscriptions and also freely target based on info that people are aware is used for targeting. That's by no means "free" in any of those scenarios.

That's the actual idea if the GDPR.

A service provider must provide its offerings regardless of the user accepting to be tracked or not. The provider is not even allowed to make it cumbersome to opt out.

If Meta doesn't like it they're free to either be fined into oblivion or, alternatively, to just fuck off from the European market.

The law in question is quite unambiguous.

It's been a while since I read the GDPR so I could misremember, but I don't remember anything similar to this assertion.

While I don't think it will work on the scale FAANG wants (see e.g. Youtube premium), what is the legal roadblock to let users chose between tracking or paying for the service?

It is literally illegal in the EU, I am pretty familiar with this regulation. This is both from ECJ decisions on gdpr and will also be codified in the DMA

It's legal in France: https://www.cnil.fr/fr/cookies-et-autres-traceurs/regles/coo... https://www.cnil.fr/fr/cookies-et-autres-traceurs-le-conseil... https://www.dataguidance.com/opinion/france-cnil-opens-door-...

In Germany too, if I remember correctly.

But if you are so sure about this, please sue so we can get rid of these cookie walls!

Germany has recently ruled this illegal: https://noyb.eu/en/pay-or-okay-tech-news-site-heisede-illega...

>Although it took the view that “Pay or Okay” could be permissible in principle, it found that the approach taken by the news outlet didn’t comply with the law because it didn’t provide the option to specifically consent to certain purposes

Not illegal then.

Cheers. It is comical that so many in this thread are suggesting that the GDPR is super clear and not subject to uncertainty given this crazy patchwork of decisions and countermands.

It's only unclear if your business model is malicious and relies on finding innovative ways to breach it and pretend it's compliant.

The regulation is very clear: non-functionally-essential data processing requires explicit consent. If in doubt, err on the side of caution and use consent and opt-in rather than another legal basis such as legitimate interest. Business models based on stalking or spamming are no longer allowed.

Keep in mind that the objective of the regulation is not some punitive shake-down but to give people rights on how their data is used. A good-faith effort that accidentally falls short will be given guidance and a reasonable timeline to implement changes - there's no risk to ever get a fine as long as you err on the side of caution. You can also proactively ask your local regulator for guidance if something is unclear.

Your own link indicates that they have gone back and forth on the guidance around "opt in or pay" models three times already.

As I have said, this model attempts to enshrine free ridership, which might work while there is the rest of the world subsidizes it, but it is not a sustainable model to force tech companies to serve users at a loss.

The objective of the DMA which will serve to enshrine the illegality of these models is to target American tech companies and European legislators have explicitly stated as such.

> this model attempts to enshrine free ridership

No it doesn't - you can still charge for a service.

It just makes stalking/spamming an unviable method of payment.

No, it makes it a legal method of payment as long as you permit free riders or alternatively you can pull up the drawbridge and charge all users for it, preventing poorer people from using the largest public squares in the world.

Free access to global communication is not a bad thing.

But this is besides the point: the guidance is absolutely not clear and if local regulators cannot even get their story straight I am not sure how you expect foreign companies to figure it out. And collecting information about how users use your property is not stalking.

> preventing poorer people from using the largest public squares in the world.

Advertisers aren't charities and the purpose of advertising is ultimately to drive profit. Subsidizing poor people is not in their interest.

The fact that poor people can currently access things for free is a result of imprecise targeting. If there was a way for advertisers to reliably tell apart poor people from the rich ones they'll happily block the poor ones.

Without laws like the GDPR in place to curtail data collection and profiling, it's only a matter of time before more and more data is collected to enable this kind of targeting and lock out poor people too.

> Free access to global communication is not a bad thing.

Global communication being subsidized (and thus controlled) by a handful of commercial interests is very dangerous.

> And collecting information about how users use your property is not stalking.

I'm not talking about basic self-hosted (very important difference!) web analytics or server logs here, I'm talking about large-scale stalking such as what Google/Facebook or any major ad provider does. The information they collect go way beyond what the user does on their platforms.

> The fact that poor people can currently access things for free is a result of imprecise targeting. If there was a way for advertisers to reliably tell apart poor people from the rich ones they'll happily block the poor ones.

You are absolutely wrong about that and you do not understand the business model. I am not saying it has anything to do with the goodness of their heart but this is absolutely not something that would be in their interest. They benefit from the networks effects just like the users do.

> Advertisers aren't charities and the purpose of advertising is ultimately to drive profit. Subsidizing poor people is not in their interest.

It is possible for self-interested action to have knockoff positive effects. In fact, it is actually quite common: most exchanges are mutually beneficial.

> I'm not talking about basic self-hosted (very important difference!) web analytics or server logs here, I'm talking about large-scale stalking such as what Google/Facebook or any major ad provider does. The information they collect go way beyond what the user does on their platforms.

If you read my original comment, you would see that I am in favor of banning cross-site stalking but that is both not what Meta is being fined for here and not the only thing the GDPR/DMA prohibits.

Targeting based on only your own platform is a good middle ground.

> Targeting based on only your own platform is a good middle ground.

I think it's still a problem because it's a grey area as to what "own platform" means exactly. Malicious actors will stretch that definition beyond what's reasonable.

Publicly-available data posted by the user seems fair, but things like scroll position, or the time you read a particular item, or forms typed but not submitted (all things I'm sure Facebook is absolutely collecting via client-side JS) should not be considered fair.

Either way, I'm personally in favour of ad-based business models getting shut down/being made unprofitable as it will ultimately realign the incentives, surface the true price of platforms and mean that we can finally have communication/entertainment tools that are designed with those primary purposes in mind as opposed to spam machines with the bare minimum amount of functionality sprinkled in. I want our online public squares to be accountable to their end-users rather than advertisers, and facilitate communication rather than outrage (what they call "engagement").

It's still very up-in-the-air since the EU-wide regulation should be uniform. I hope the pendulum eventually stops in a way more privacy friendly place than those recent french ones. Yes it would be a pretty harsh stroke for the business model of some companies (social media, for example) but the alternative seems much worse.

Fair enough, these decisions are recent and are in conflict with other decisions in other countries around the GDPR as well as past guidance from European regulators (the EDPB explicitly said that this was not allowed in 2020). I also don't think you can really say with a straight face that this is a decision that a company like Meta could comfortably rely on, the regulatory uncertainty here is still extremely high.

It also requires a court to decide that your fee is a “reasonable” one and you cannot just refuse access outright - you must make your content available to the non-consenting user.

Regardless, all of this will be illegal anyways once the DMA comes into effect. And I still think, national exceptions aside, that my description of the current state of EU law was accurate:

"The prevalent regulatory approach in Europe is that currently advocated by the European Data Protection Board ('EDPB') in its Guidelines 05/2020 on Consent under Regulation 2016/679 whereby the EDPB provides in no uncertain terms that '[i]n order for consent to be freely given, access to services and functionalities must not be made conditional on the consent of a user to the storing of information, or gaining of access to information (paragraph 39 of the Guidelines)'." [0]

[0]: https://www.dataguidance.com/opinion/france-cnil-opens-door-....

I have doubts on how effective these type of consent based system are. I for one always click “accept all” and move on for most websites I am on. Average layman has very little time the effort needed to understand and customize the consents are quite high. Not to say they purposely make the UI hostile in those consent popups. For me anyway GDPR has been largely a waste of bureaucracy, a better effort would be to educate populous about what cookies are and how tracking works and the extent of the trackings etc - these stuff should be in High School curriculum already by now.

Any site that uses a dark pattern like only having "Allow all" and "Show purposes" is in clear violation of the GDPR, and they could just as well have just ignored showing anything! The regulation is clear that opting out should be as easy as opting in. A conforming consient dialog has a "reject all" as well as an "allow" button.

And when they do, I always click "reject all". I think most people would - which is why I guess some sites still try to use those dark patterns. I'm still waiting for a big regulatory fine to make an example. If a known company is fined almost out of existence due to lack of a reject button, I think there would be instant self-regulation here.

> For me anyway GDPR has been largely a waste of bureaucracy, a better effort would be to educate populous about what cookies are and how tracking works and the extent of the trackings etc - these stuff should be in High School curriculum already by now.

Don't confuse the GDPR with "cookie banners" though. That's the end user visible tip of the iceberg. The biggest premise (and in my opinion the genius of the regulation) is that the end user is not required to know or understand anything. Instead, the people handling their data should. And if nothing else, it really has forced everyone (often even outside the EU) to think twice about how their data is stored and retained. And that's huge positive even if cookies were never a thing in gdpr.

> how their data is stored and retained

Didn’t the EU recently cut a deal where the data from EU can be transferred to US without any legal ramifications [1]? So then this just goes to show it’s just about adding another layer of bureaucracy instead of caring about protecting user data.

[1] https://www.politico.eu/article/eu-signs-off-on-data-transfe...

I mostly agree. I'm not exactly a fan of Big Tech; Meta, X and co. are all pretty horrid companies, but it does feel like some EU politicians think they've discovered an "infinite money glitch" and they just lob random fines at these companies expecting them to cough up cash to stay in their markets. some of the things they're getting fined for is pretty ridiculous.

Not even 100k is a joke, not infinite money.

uS style privacy invasion only makes sense if you're already drunk on the Kool aid

Simply a tit-for-tat for all the EU companies that were sued in the US the last ten or fifteen years.

can you elaborate? what companies? why did they get sued?

Sure: Airbus, Alstom and Technip are a few examples.

They were usually sued for corruption in developing countries to obtain contracts.

They were however sued in the US even though they are not headquartered there, had to pay huge fines that brought said companies to their knees and were later, surprisingly, bought by American companies.

Only one of those was bought by an American company and also they literally were bribing politicians

> Only one of those was bought by an American company

Yes, the operation failed in the case of Airbus because they were smart enough to raise the issue themselves in the UK to avoid being sued in the US.

Alstom was bought by GE and Technip was bought by FMC Technologies.

> and also they literally were bribing politicians

Something that no US company has done in developing countries I'm sure.

In the case of GDPR-fines companies are literally laundering use data.

US companies are also sued and fined in the US for breaking these laws.

> In the case of GDPR-fines companies are literally laundering use data.

They are using the data in compliance with their ToS, which is decided post-facto to be in violation of the GDPR. The level of regulatory uncertainty there is far from the clear-cut “don’t bribe politicians.”

> US companies are also sued and fined in the US for breaking these laws.

And European companies are also sued for breaking GDPR. Recently, the CNIL fined Criteo, a French adtech company, for 40M€. Multiple other fines in the 1M+€ range (Carrefour, Total, AG2R…) for French companies.

You can go on Enforcement Tracker, you will find a lot of small fines against EU entities, and few but heavy fines against US entities. I don't think this is protectionism, but rather that EU companies fare better than US companies in environments with historically strong privacy laws, precisely because they are subject to these regulations from day 1.

> They are using the data in compliance with their ToS, which is decided post-facto to be in violation of the GDPR.

A ToS is a contract, and contracts can violate the law. Nothing surprising here.

> I don't think this is protectionism, but rather that EU companies fare better than US companies in environments with historically strong privacy laws, precisely because they are subject to these regulations from day 1.

Here is a quote from an MEP who helped design the EU DMA on deciding who counts as a gatekeeper:

"Let’s focus first on the biggest problems, on the biggest bottlenecks. Let’s go down the line—one, two, three, four, five—and maybe six with Alibaba. But let’s not start with number seven to include a European gatekeeper just to please Biden.”

It is hard for me to read that as suggesting anything but strongly protectionist motivations.

> A ToS is a contract, and contracts can violate the law. Nothing surprising here.

I don't disagree, merely with the suggestion that the regulatory framework the EU has set up, which is still actively being worked out in a patchwork of procedural decisions up until literally today, is as clear-cut as the US prohibition on bribery in the FCPA.

That's nice, but we're talking about the GDPR, a law with roots in the 70s. Not the DMA. And as I pointed out earlier, EU entities are getting fined and sued by regulators.

Really? I was the original commentator and afaik I was discussing “recent efforts” as protectionist including both new GDPR decisions and the DMA.

About GDPR and protectionism–I already answered. Sorry if I misunderstood you, I did not pay attention to the DMA and that was not the subject of the article.

Fair enough, thank you for your informative comments here and with regards to cookie walls

> US companies are also sued and fined in the US for breaking these laws.

Could you give me some examples?

Also, US suing EU companies for things happening in developing countries is a mind blowing overreach of US territorial jurisdiction.

> They are using the data in compliance with their ToS

A ToS isn't a law.

> which is decided post-facto to be in violation of the GDPR

No. GDPR was introduced and companies were given years to adapt and become compliant.

> The level of regulatory uncertainty there is far from the clear-cut

This is also wrong. You can simply ask the EU member country's national agency responsible for the enforcement of the GDPR proactively.

> The level of regulatory uncertainty there is far from the clear-cut “don’t bribe politicians.”

In countries that run on bribes this becomes less clear.

Honeywell was recently fined for FCPA violations.

I don't see it as overreach that the US does not let foreign companies that pay bribes compete in the US. Given that US companies cannot pay bribes legally, it would be hard for them to compete domestically with companies that can bribe simply because they are headquartered elsewhere.

> This is also wrong. You can simply ask the EU member country's national agency responsible for the enforcement of the GDPR proactively.

I am going to assume this one is a joke given the consistency (or lack thereof) of GDPR guidance from European regulators.

> Honeywell was recently fined for FCPA violations.

They were fined a third of what Alstom while having double the revenue.

This only happened because both Brazil and Algeria got involved.

> I don't see it as overreach that the US does not let foreign companies that pay bribes compete in the US.

But this is not competition in the US, it's competition abroad.

> Given that US companies cannot pay bribes legally

Which like Honeywell we know they absolutely do like every company operating in developing / BRICs countries.

> I am going to assume this one is a joke given the consistency (or lack thereof) of GDPR guidance from European regulators.

Yes and I'm sure that Google, Facebook & co were only caught on "technicalities" because the law wasn't "clear enough". If that is not a joke I don't know what is ...

> They were fined a third of what Alstom while having double the revenue.

I think you have a flawed conception of how fines are supposed to work…

> But this is not competition in the US, it's competition abroad.

Of course it is about competition in the US, otherwise they could freely exit the US market and not pay shit.

> Yes and I'm sure that Google, Facebook & co were only caught on "technicalities" because the law wasn't "clear enough". If that is not a joke I don't know what is ...

I mean, this whole conversation is about whether they are being targeted by regulators - your statement is question-begging.

> I think you have a flawed conception of how fines are supposed to work…

Fine amounts are not related to company revenue but it gives you an idea of the impact it might have on the company and the sentencing differences when we are talking about an American company vs a foreign company.

> Of course it is about competition in the US, otherwise they could freely exit the US market and not pay shit.

No it's not. The only reason these companies comply is that the US has retaliatory tools outside of the US that are very powerful.

It has nothing to do with American contracts which represented a minor share of the revenue in the case of Alstom.

> I mean, this whole conversation is about whether they are being targeted by regulators - your statement is question-begging.

Yes, because they simply broke the law.

I mean Google is still sending data back to the US while this has been illegal since 2020.

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