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Comment by dgoldstein0 | Hacker News Reader

A lot of cookie banners intended to satisfy GDPR don't - websites have to have a clear opt out, and anything "go to these other sites and opt out individually" is probably not compliant. Some big vendors however pushed the bounds of this and probably are getting their asses handed to them - but as with all legal things this would be happening in slow motion. GDPR has some good ideas, but implementation hasn't been perfect.

CCPA https://oag.ca.gov/privacy/ccpa in my opinion is a more straightforward law. Basically: if you want to sell someone's information you have to get consent first. It still has some of the "banner on every site" problem but at least most which are clearly for CCPA are binary ok/don't sell my data questions.

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You and the parent are conflating GDPR with the "ePrivacy Directive" (cookie law).

GDPR doesn't say much about cookies. What GDPR says is that you have to have a legal basis for processing user data. For example, a DPA just ruled that Facebook doesn't have a "legitimate interest" when using the user profile for ads targeting, so they'll be forced to ask for opt-in consent without the ability to deny service to those that refuse. A legitimate interest is for things the customer expects as part of the service, e.g. an address is needed for home delivery, or maybe data needed for security (IP logging).

https://thisisunpacked.substack.com/p/the-eu-war-on-behavior...

The cookie banners are needed when websites are fingerprinting users. The website may have a legitimate interest for doing analytics, but the user still needs to be informed that they are fingerprinted. NOTE: here, too, you don't need cookie banners if it's functionality that the user expects, like a session or a shopping cart cookie.

At the risk of repeating myself: websites need cookie banners or GDPR consent dialogs mostly when doing shit that violates people's privacy.

I've read a lot of complaints against GDPR on HN and elsewhere and I feel that it misses the forest from the trees: those banners and dialogs expose just how widespread the practice of violating people's privacy is. And I fear that a lot of the backlash coming from Silicon Valley has been from people connected to the ads industry.

> NOTE: here, too, you don't need cookie banners if it's functionality that the user expects, like a session or a shopping cart cookie.

As I point out every time this comes up, under ePrivacy the burden the site has to meet is not "expects" but "strictly necessary to satisfy a user request". And the way most sites implement shopping carts, where items will still be in your cart if you close your browser and come back the next day, isn't ok:

a merchant could set the cookie either to persist past the end of the browser session or for a couple of hours in the future to take into account the fact that the user may accidentally close his browser and could have a reasonable expectation to recover the contents of his shopping basket when he returns to the merchant's website in the following minutes. https://ec.europa.eu/justice/article-29/documentation/opinio... (2.3)

Maintaining a shopping cart across days isn't "strictly necessary" and so requires explicit consent.

(More: https://www.jefftk.com/p/why-so-many-cookie-banners)

IANAL, but as a layman, I don't think I agree with your article. But thanks for the links.

I don't think the difference between hours and days is relevant, unless the law says that there's a difference. Setting user preferences, such as the language, is a matter of accessibility. I'd be hard-pressed to think of a better sample of “strictly required”.

Setting user preferences, such as a “dark mode” toggle, wouldn't be any different from setting the browser or operating system's dark mode preference, a bit that web pages can always read.

It's important to remember that ePrivacy isn't strictly about cookies, but about all client-side data that gets sent to the server. For example, in case you're doing analytics, fingerprinting via any other means except for cookies (e.g., user agent, HTTP referrer, IP, etc.) still counts under ePrivacy. As such, you can fingerprint users via “window.matchMedia('(prefers-color-scheme: dark)')”, and if you do that, then yes, you need a cookie banner. But not for doing what the user agent asked for.

For analytics, indeed, you need a cookie banner. And while it's a concern of service providers to improve their service that I understand, it's not something that the user expects. And my personal problem is that the entire web ended up using Google Analytics. Such data ends up being shared with third parties, which is why it's good that it is opt-in.

I do agree that businesses should consult lawyers (＾＾)ｂ

Remembering user preferences are very different; I didn't bring them up and don't disagree there.

My claim is that many things users might expect to be retained are not automatically ok to retain, and that shopping carts as typically implemented are one of these.

Yeah. Cookies qua cookies are at best something obvious and measurable, but don't necessarily correlate with the company doing anything nefarious with your information. What's worse, it has always been the client's choice to keep cookies. You can, e.g., browse in a private tab on Chrome and they'll get automatically deleted.

The fact that cookies are A) only loosely correlated with undesired behavior and B) already optional makes it absurd that every site I visit should waste 10 seconds of my time with a banner asking me to consent to their use of cookies. Especially because the only way for them to remember that preference is... to give you a cookie!

Fortunately Brave has an option to automatically skip those banners, which works on most sites.

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