Comment by cccbbbaaa | Hacker News Reader

Comment by cccbbbaaa | Hacker News Reader

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With all due respect, this is the kind of speculation I was complaining about earlier.

>Almost nothing is strictly necessary to just serve content when a URL is accessed

That's not what the law says.

> 3. 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.

Emphasis mine. It's not to just serve content, but to provide a service requested by the user. This should clear up the confusion.

Full text here: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CEL...

Anyway, I provided a link from the ICO that explicitly says it's OK for user IDs, user preferences, etc.

The CNIL agrees: https://www.cnil.fr/sites/cnil/files/atoms/files/lignes_dire... See point 49.

The EDPB agrees: https://ec.europa.eu/justice/article-29/documentation/opinio...

I knew about this part of the law too, and it sounds like captchas don't count as "strictly necessary" based on the original part and the Opinion 04/2012 on Cookie Consent Exemption you linked, but I'm not sure.

"Simply using a cookie to assist, speed up or regulate the transmission of a communication over an electronic communications network is not sufficient. The transmission of the communication must not be possible without the use of the cookie." - criterion A "A cookie is necessary to provide a specific functionality to the user (or subscriber): if cookies are disabled, the functionality will not be available." - B

For B, they say for example that a session ID to keep a user logged in is fair to use without asking, provided the user explicitly wanted to log in.

If you use a captcha to secure your service, they can be. See article 4 of the ePrivacy directive. This is also said in section 3.3 of the EDPB guideline.

The issue of Google's reCaptcha, according to the CNIL at least, is that they use data collected through the service for their own purposes. See https://www.legifrance.gouv.fr/cnil/id/CNILTEXT000047346903, point 86. Deepl translation below:

> If a data controller can claim exemption from the requirement to provide information and obtain consent when the only purpose of read/write operations carried out on a user's terminal is to secure an authentication mechanism for the benefit of users (see CNIL, FR, September 27, 2021, Sanction, no. SAN-2021-013, published), the situation is different when these operations also pursue other purposes that are not strictly necessary for the provision of a service. The Google reCaptcha mechanism is not intended solely to secure the authentication mechanism for the benefit of users, but also enables Google to carry out analysis operations, as Google itself specifies in its general terms of use.

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