Also, please remember that in Europe there is no such thing as "the spirit of the law versus the letter of the law." The intent of the law IS the law.
On the other hand, there is the issue how the intent of laws (which were often passed by highly incompetent politicians, in particular when IT topics are involved) is to be interpreted.
and even if the law somehow becomes a perfect ideal filter for separating good from bad ... its enforcement will run into the problem of false positives and negatives as long as it deals with messy real world events and their various imperfect impressions found in whatever evidence is collected in a case.
well, of course a more competent electorate and politicians would be nice anyway, but now we run into the problem of competence in the eyes of who?
I think lots of courts claim this, and none actually do.
One way to do that is to interpret the law strictly according to the text, or in the case of ambiguity to choose the interpretation that benefits the accused rather than the government. Then you could just read the law to know if it prohibits what you want to do, because unless it unambiguously does, then it doesn't. And then if the government doesn't like it once they see someone doing that, it's up to them to change the law.
Another is to give people a way to get clarification ahead of time. This is called advisory opinions and governments generally hate them because as soon as you allow it, the government is going to be absolutely swamped with requests for clarification because everybody wants to pre-clear everything they're going to do rather than take the risk of getting punished for doing something without clearing it. But in order for this to work, getting a clarification has to be cheap, because "pay a million dollars for an advisory opinion to avoid the risk of a million dollar fine" isn't a real solution to the problem of people getting punished when the law is unclear.
So the first one is actually better, the only "problem" with it is that you need the government to be paying attention and promptly rework the law when it isn't having the intended effect, otherwise you'll have people complaining about it because in the meantime there is a dumb law on the books. But if your government is bad at making good laws then you're going to have a bad time no matter what.
A partial solution to this problem is: write laws in a way that need a lot less clarification because there is rarely a need for it because the laws are thought out so well.
Not doing that is a civic duty that I expect from every politician who wants to be considered to be more trustworthy than a child molester who has relapsed several times.
You need something like, ban omnibus bills with a single subject matter rule. Replace first-past-the-post with score voting to dissolve the two-party system. Add new checks and balances so that someone with a better structural incentive to reject bad laws is in a position to veto them, like the US Senate used to be before the 17th amendment.
Or in the EU the structural problems will be different and you may need something different, but you still need something or the status quo tomorrow will be what it was yesterday.
In any case, there is always a difference between the “intent” of a large and diverse body of politicians, and the actual text of a law. Any practical legal system must take it into consideration.
This is a fiction and just an excuse conservative justices use to make conservative rulings when they don't like a law.
They are perfectly fine to abandon the text of the law whenever it doesn't move forward a conservative agenda. The shining example of this is the voting rights act. Something never amended or repealed by congress but slowly dismantled by the court counter to both the intent and the text of the law.
And if you don't believe me, I suggest reading over the Shelby County v. Holder [1] decision because they put it in black and white.
> Nearly 50 years later, they are still in effect; indeed, they have been made more stringent, and are now scheduled to last until 2031. There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.
IE "We know the law says this, and it's still supposed to be in effect. But we don't like what it does so we are canceling it based on census data".
Isn't this the other way around? If you cite "the spirit of the law" then you're ignoring the text in order to do whatever you want.
Finding a "conservative" judge who does the latter is evidence that the particular judge is hypocrite rather than any argument that ignoring what the law actually says is the right thing to do.
But you also picked kind of a bad example, because that wasn't a case about how to interpret the law, it was about whether the law was unconstitutional.
Why does the First Amendment say "freedom of speech, or of the press" and make no mention of radio or TV or the internet? Because, of course, it was enacted in 1791. The drafters can't be expected to have listed things that didn't exist yet and it's obvious to everyone that it's meant to apply to this category of things even if we're now using fiber optics and satellites instead of dead trees.
But if you're interpreting a law from 20 years ago instead of 200 and nothing relevant has changed that the drafters couldn't have predicted when it was enacted, the fact that someone is doing what you said instead of what you meant is entirely down to you being bad at saying what you mean and that ought to be on you rather than on them.
If you read GDPR in it's complete form [1], there are 173 paragraphs before the actual law begins at CHAPTER I, almost half way down the page. Those are the reasons why the law was created, what's it trying to achieve, how it is intended to work, responsibilities of govenrnments, etc.
The EU provided us the spirit of the law - in writing.
first case was around 2018-2019 and then it took some time for the cookie banner consent thing to percolate through the courts. (the Hungarian data protection agency already issued a ~3000 EUR fine in 2018-08 and cited the GDPR. and the Hungarian DPA cites this 2019 EU court case which is explicitly about cookie consent [1])
and according to this tracker - https://noyb.eu/en - there are 2B fines already imposed and (883 total cases and still 468 pending)
[1] https://curia.europa.eu/juris/document/document.jsf?text=&do...
If people care about privacy, then over time they will migrate to companies and services that respect their privacy. Government laws are broad based policies that always lack nuance. This is why it is better to let markets drive better outcomes organically.
It isn't that this can't be enforced, it just lagged because of the size and changes that this law brought.
> Also, this is a problem that naturally solves itself over time, so no law was ever needed.
How does it solve itself?
> The UX of the web degraded for everyone after GDPR was passed and that I think everyone can agree on.
Due to website operators doing illegal things.
> If people care about privacy, then over time they will migrate to companies and services that respect their privacy.
Why would people care about something they don't know about?
How long have these laws been out and we are still dealing with these issues. They seem to have gotten worse, not better.
> How does it solve itself?
People build services that don't track others and people pay for those services. It's pretty simple.
> Due to website operators doing illegal things.
If it was so illegal it would be stopped, but apparently businesses are indeed complying with the law.
> Why would people care about something they don't know about?
It's well known that cookies track you across sites and some people choose not to use those sites. The sites are required to disclose this information, so users are definitely aware.
No, they have gotten better. Earlier reject all was barely seen on the internet. Now it is on the majority of places or at least in much more places. How is that getting worse? Can you please explain how it has gotten worse or why you think it has gotten worse?
> People build services that don't track others and people pay for those services. It's pretty simple.
How would an average individual know that a service is tracking them if the service doesn't need their consent for it?
> If it was so illegal it would be stopped, but apparently businesses are indeed complying with the law.
GDPR art. 7.3:
"The data subject shall have the right to withdraw his or her consent at any time. 2The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal. 3Prior to giving consent, the data subject shall be informed thereof. 4It shall be as easy to withdraw as to give consent."
So the law states that it must be as easy to reject cookies as to accept. That means that it is illegal to hide reject all.
In the parent post of this thread there is even a link about a court case:
https://www.techspot.com/news/108043-german-court-takes-stan...
So has your opinion with this information changed on who is to blame for the bad UX? If not, why not?
> It's well known that cookies track you across sites and some people choose not to use those sites. The sites are required to disclose this information, so users are definitely aware.
Maybe now, because of GDPR forcing site operators for asking consent to being tracked. But you said that it would happen organically without GDPR. I'm confused, even you, in the last sentence say that sites are required to disclose information but that is because of GDPR. It isn't the market somehow reaching that point organically. So which is it because you seem to agree that GDPR is needed but at the same time you are saying that it isn't needed and the market would sort it out. I'm really confused now.
First order of blame goes to the national DPAs for not carrying out their duties.
Second order of blame goes go to whichever EU authority is responsible for penalizing EU member states for non-compliance. There should be serious consequences for non-enforcement like frozen funding. (I don't know what the actual legal process is)
> If people care about privacy, then over time they will migrate to companies and services that respect their privacy.
This is just a libertarian fairy-tale that is designed to sound sensible and rational while being malicious in practice. It exploits information asymmetry, human ignorance, network effects, and our general inability to accurately assess long-term consequences, in order to funnel profits into the hands of the most unscrupulous businesses.
In other words, there's a reason why we have to have regulations that protect people from themselves (and protect well-being of society as a whole).
Investigating murders is enforceable. If law enforcement isn't doing their job then that is a different problem. By virtue of being on the Internet, tracking cookies span many legal jurisdictions (even ones outside of the EU that never agreed to GDPR) and therefore run into all sorts of different legal obstacles. Apples and oranges and all that.
> This is just a libertarian fairy-tale that is designed to sound sensible and rational while being malicious in practice. It exploits information asymmetry, human ignorance, network effects, and our general inability to accurately assess long-term consequences, in order to funnel profits into the hands of the most unscrupulous businesses.
No, it allows people to be adults and vote with their feet. We do this all the time in many other areas and it works. (Exactly what the free market is based on) This is not to say that there shouldn't be any privacy and anti-spam laws, but when it comes to allowing marketing/advertising the trade-off has been well understood for some time. We are all funneling a lot of profits into companies that provide software to serve up the cookie banner warnings now and the advertisers still end up getting lots of people's data. A poorly designed law is a bad law. Legally requiring consent upfront and the ramifications of that decision should have been thought through much more thoroughly.
Yes, that is precisely the problem with GDPR, too. Enforcement is supposed to be carried out by national Data Protection Authorities but they just don't investigate. I've reported some clear cut violations and they never followed up on anything.
Swedish one is even being taken to court for completely neglecting their duties: https://noyb.eu/en/noyb-takes-swedish-dpa-court-refusing-pro...
> By virtue of being on the Internet, tracking cookies span many legal jurisdictions (even ones outside of the EU that never agreed to GDPR) and therefore run into all sorts of different legal obstacles.
It doesn't matter. It's irrelevant to the general enforcement issue. Most DPAs seem to be failing to enforce even the simplest of cases. Let's chat about the edge cases and jurisdiction when the clear cut cases are being taken care of reliably.
No, it's not the problem with GDPR. As explained earlier it has to do with jurisdictional overreach.
> It doesn't matter. It's irrelevant to the general enforcement issue. Most DPAs seem to be failing to enforce even the simplest of cases. Let's chat about the edge cases and jurisdiction when the clear cut cases are being taken care of reliably.
Edge cases and jurisdiction are at the heart of this issue and exactly why it is a bad law. This is exactly the baggage that bad laws create!
Or, alternatively, you _could_ enforce the law but the resources to do so (people) are no longer available. This happens a lot in the US when the current admin doesn't feel it's important, so doesn't fund the enforcement agencies. And is particularly true more of codes/regulations (I get them confused) than of laws.