The stupid cookie law is dead at last

http://blog.silktide.com/2013/01/the-stupid-cookie-law-is-dead-at-last/

by silktide • 13 years ago

200 66 13 years ago

blog.silktide.com

morphics• 13 years ago

Thank goodness for that. Countless hours have been lost debating how best to implement this pointless law, and the amount of business lost due to unsightly and confusing consent banners must have been huge.

petercooper• 13 years ago

I think it might have been Derek Sivers who wrote a great essay about how in business the best policy is often just to ignore silly rules and regulations (except the really serious ones) until someone pulls you up on it. I took that to heart, and that was ultimately the best policy with this.

The ICO had dropped enough hints that they'd be lenient and go after the big boys and most evil violators first that 99% of sites were wasting their time panicking about implementing this stuff.. yet panic they did.

walshemj• 13 years ago

yes given that my employer a FTSE 100 publisher must have spent a huge amount time and money on this stupid law - can we claim this back against our tax bill.

kintamanimatt6• 13 years ago

Well, yes. Generally and imprecisely speaking, expenses are deducted from revenues and the net is what's taxable. Your employer will end up paying a little less corporation tax because of it. Whether it's a net loss for the government is another matter, as what isn't paid in corporation tax might be paid in national insurance and individual income taxes.

Could your employer sue the government for their compliance costs? Almost certainly not.

robotmay• 13 years ago

Well at least they realised they were being a bit thick; they could have just kept on blindly enforcing it. I think it really hit home when they lost a serious percentage of their analytics data.

panacea2• 13 years ago

A "serious amount of their analytics data" was already lost to US.com

UnoriginalGuy• 13 years ago

Browsers already have the ability to ask the user if they want to accept a cookie. So all this law did was reproduced browser functionality that has existed all the way back to Netscape.

That all being said however, I'm not entirely sure it is "dead." The current legal standing from my understanding is a grey area...

kintamanimatt6• 13 years ago

No, the law also prohibited use (without permission) of such things as flash cookies and cookie-like things stored in HTML5's web storage, HTTP ETags, IE userData storage, Silverlight isolated storage, etc. The browser has no control over these things, only standard HTTP cookies for which it is responsible.

lucian19002• 13 years ago

The browser has full control over HTML5 storage.

rmc3• 13 years ago

The law allows you to use standard browser technology, however the default browser settings do not meet the minimum standards of "actually getting consent from the user".

polshaw• 13 years ago

The cookie law is in no way dead, the ICO is just doing what every other 'compliant' site has always done.

New policy for the ICO site:

> Cookies set on arrival to the site. New cookies banner displayed. Banner explains that the website uses cookies and that cookies have been set, tells users they can change their cookie settings (via a new cookies page), or continue to use the site.

I always thought the "set first and offer the user to kindly f' off if they don't like it" method was not in the spirit of the law, but that is the one that sites have adopted. There was never any realistic possibility of prosecution in that scenario, so i see this move as just the ICO accepting reality.

radiac• 13 years ago

Rather than what Silktide are saying, this change just seems to be bringing their own website into line with their last-minute clarification (or rather u-turn) on implicit consent.

The ICO spent a year banging on about how you need explicit consent, and lots of people ran around implementing various solutions that make people click buttons and are generally incredibly annoying. Then, about 12 hours before the law came into effect, the ICO said "Actually, you know what? Implicit consent is fine."

On the off-chance anyone is still interested in this sort of thing, I wrote a small implicit consent script after the ICO clarified their position: http://radiac.net/projects/cookieuse/

grabeh5• 13 years ago

I was wondering when another sensationalist blog post would pop-up from Silktide.

Last May, the ICO acknowledged that in certain cases, implied consent would be appropriate and this is judged on the basis of the type of cookies that a site is looking to set plus the information that is made available to a user on its site regarding cookies.

The ICO considers that due to having had explicit consent on their site for a number of months, and due to the information generally available on their site, it was ok to switch to an implied consent approach. The cookies that are set when you go on the ICO websites do not include any third party advertising cookies.

For other sites, it is not guaranteed that an implied consent will be appropriate where for example third-party advertising cookies are set and very little information is provided generally (for example in a specific cookie policy).

As such, it is still for each website to consider whether in their own specific circumstances, it is appropriate to have an explicit consent or whether implied consent is ok. I appreciate that this creates ambiguity but as I understand it, it reflects the present position.

I still think the overall aim of the policy in terms of educating users as to the nature of cookies is a good one. That aim is one that is of course not particularly aimed at anyone who browses this website I wouldn't have thought.

alanctgardner2• 13 years ago

> the type of cookies

The ones with text inside them, or the other ones with text inside them? I don't understand how you decide between good and evil cookies.

> The ICO considers that due to having had explicit consent on their site for a number of months, and due to the information generally available on their site, it was ok to switch to an implied consent approach

Why is there a temporal component ( a couple of months ), surely new visitors come all the time? Why is the content relevant? According to their stats, 10% of the users explicitly consented. Switching to implied consent on that basis makes no sense.

> it is not guaranteed that an implied consent will be appropriate

I'm pretty sure it's not OK to say 'You might be breaking the law, but we'll let you know once we decide to prosecute'. 'Very little information' is a terrible metric; there's an implication that quality is also necessary. If I populate my user-tracking page with mathematical proofs, I've encoded information on that page - potentially a lot. It doesn't mean anything.

> I appreciate that this creates ambiguity

I appreciate that you didn't create this law (I hope). Ambiguity is bad. And expensive. All this backtracking they've been doing, it wastes my time, it wastes some civil servant's time, and it accomplishes nothing. It seems like these policies should be like trademarks; subject to dilution if they aren't suitably enforced. If Disney decided to give everyone two years to use their logo free and clear, or they only prevented 'content-free' uses, they would lose that mark.

Nursie7• 13 years ago

"I don't understand how you decide between good and evil cookies."

It's all in the intended use.

Good cookies: Session cookies for ecommerce and other transactional style web interaction

Bad cookies: Advertisers tracking cookies that track users across multiple sites without their knowledge or consent.

See?

grabeh5• 13 years ago

> The ones with text inside them, or the other ones with text inside them? I don't understand how you decide between good and evil cookies.

Yes, of course, on a basic level, there is no difference between cookies but I think it's reasonable to say that they can achieve different purposes, particularly in terms of the information that they can allow third parties to collect on a user.

> Why is there a temporal component ( a couple of months ), surely new visitors come all the time? Why is the content relevant? According to their stats, 10% of the users explicitly consented. Switching to implied consent on that basis makes no sense.

Of course there will be new visitors who will have no idea about the opt-in approach previously taken by the ICO. You are quite right to identify that to those users, the previous opt-in approach was irrelevant. Rather than focusing on individual users, to me, the ICO's approach is to identify what steps a site is taking to educate its users in general.

In reality, I'm sure a large proportion of users will click whatever box they are told to if it means they can access a site or remove a banner but that doesn't mean that a site should be excused of its obligation to at least provide information to those users who may want to learn more about the cookies being set.

In terms of content, I should have been clearer, I meant content providing clear information on the types of cookies being set.

> I'm pretty sure it's not OK to say 'You might be breaking the law, but we'll let you know once we decide to prosecute'. 'Very little information' is a terrible metric; there's an implication that quality is also necessary. If I populate my user-tracking page with mathematical proofs, I've encoded information on that page - potentially a lot. It doesn't mean anything.

Yes, any law should provide clear limits to its effect to people can know when they are breaking it. From what I have read, the ICO is likely to adopt a consultative approach to enforcement in terms of letting a site know that they consider that the site could do more to educate its users as to the cookies that are being set when a user visits. By information, I mean relevant information in the form of a policy clearly explaining to users the cookies that will be set when a user visits the site.

> I appreciate that you didn't create this law (I hope). Ambiguity is bad. And expensive. All this backtracking they've been doing, it wastes my time, it wastes some civil servant's time, and it accomplishes nothing. It seems like these policies should be like trademarks; subject to dilution if they aren't suitably enforced. If Disney decided to give everyone two years to use their logo free and clear, or they only prevented 'content-free' uses, they would lose that mark.

Heh, no, I did not create this law. I agree that ambiguity is bad, and that responsible businesses who sought to implement solutions before the ICO's u-turn on implied consent last May have incurred expenses unnecessarily which is not how laws are meant to operate.

The elephant in the room is that in certain quarters, the UK's approach to interpretation/enforcement falls short of that required to comply with the terms of the Directive. Whilst this may be the case, I'm sure sites would prefer to be subject to the ICO's softer approach at this stage than have to implement a full opt-in and be subject to harsh enforcement.

Your proposal might make a degree of sense - however, a trade mark owner's rights would generally not be revoked for lack of enforcement. A grant of trade mark rights as you mention would be subject to an implied licence which Disney could arguably revoke at any time. At worst, if they did not take action against an unlicensed use, they could be deemed to have acquiesced in the usage, and be prevented from taking enforcement action subsequently. This may be a more appropriate analogy than simply having the underlying rights (mark or legislation) removed.

I'm not particularly positive about the law itself and acknowledge that it is adding confusion and additional costs to businesses in terms of compliance. My only concern is that posts like the Silktide one are unnecessarily bias against the law and are essentially just preaching to the converted (developers/IT professionals etc are aware of how cookies work and what purposes they achieve).

The position I laid out above is only really my interpretation of the ICO's current stance. Although completely anecdotally, only last week, some colleagues who I would consider to be your average internet user were commenting on how weird it was that adverts in relation to sites that they had previously visited were appearing on other sites. If the cookie law means even a small proportion of users are educated about cookies, I think this is a good thing.

darkarmani3• 13 years ago

> I still think the overall aim of the policy in terms of educating users as to the nature of cookies is a good one.

If only users could turn off cookies in their web browser and leave the rest of us alone.

gvido• 13 years ago

A similar law is still going strong in The Netherlands. As of this year, most Dutch sites greet you with an annoying pop-up.

panacea2• 13 years ago

Annoyance, related to privacy. I vote for being "annoyed".

sjmulder• 13 years ago

Shame is that at many sites it’s not really opt-in. If you disagree, you get a lecture on why the site is obliged to track you and then you can accept anyway or leave. A cookie wall, if you will.

Examples:

* http://tweakers.net

* http://nos.nl

* http://uitzendinggemist.nl

NOS (public news broadcaster) and Uitzending Gemist (public television catch up) are interesting cases because apparently they’re actually required by law to collect user statistics.

jules4• 13 years ago

In the abstract, I agree. Only somebody who does not understand cookies would say such a thing in this context however (like our Dutch politicians).

You, the website visitor, are running a program called a browser. This browser sends and receives data from servers that host the web sites you visit. Some of that data contains a request to store a piece of information on your computer. Your browser stores that piece information, and later when you visit the site again, it sends the same piece of information back to the site.

Note that cookies are not some evil technology created by website owners to track you. It is YOU who is running the software that stores the cookie. If you don't want cookies, DON'T STORE THEM. This is easily done in any competent browser.

By analogy, if you don't want people to store things in your basement, don't give them the keys to your basement! The current Dutch law is: after you already gave them the access to store cookies on your computer, the law forces that person to ask you again if they are allowed to store cookies. Not only does it not keep any bad people out and thus gives a false sense of security, it's also annoying.

The correct action to take is to educate people on the existence of cookies, and how to disable them completely or disable them for specific ranges of sites. This is less annoying for both the users and the site owners, and more importantly it also works for foreign sites that the Dutch law has no power over, like Google analytics & Facebook like buttons that track you all over the internet (which is a much bigger privacy concern than uitzendinggemist.nl or nos.nl). While they're at it they might as well sponsor efforts to make browsers less identifiable through other means than cookies, and support projects like Tor. Of course that's not going to happen, because the current security theater reminds millions of Dutch citizens every day that they are being protected by their politicians through messages in annoying popups.

kintamanimatt6• 13 years ago

Be that as it may, you can still be tracked without cookies (HTTP or similar) just by looking at the browser's fingerprint. This method is less reliable which is why it hasn't been used in preference to cookies.

Requiring explicit permission to store cookies on a user's browser is more likely to encourage privacy-invading companies to use the browser's fingerprint instead. This fingerprint can be loosely tied to a real world identity, and across sites too. The user wouldn't have any knowledge of such happening and they also wouldn't have any degree of control over it. At least presently it's trivial to block the most common form of tracking: HTTP cookies.

majc2• 13 years ago

IIRC its an EU directive (ePrivacy), which each member state has to implement. Hopefully, everyone will see sense with directive.

furyg32• 13 years ago

One thing that is still unclear to me about the Dutch law:

Is the Dutch law only for .nl domains? Domains hosted in NL? Sites owned by Dutch companies?

rmc3• 13 years ago

It is nearly always the case that the country the servers are in, and the country the owners (persons/companies) are in is the relevant law.

Imagine a dutch company with servers in the netherlands, witha .com address. Why would they be exempt from dutch law?

onemorepassword6• 13 years ago

The Dutch law applies to any company doing business in the Netherlands. So it applies to Facebook and Google as well as local Dutch sites, because they have offices here and accept money from Dutch users/advertisers.

It's almost just like in the real world...

(Also, there's plenty of jurisprudence for that when for instance it comes to online gambling.)

ordinary• 13 years ago

The best (worst) thing about this whole law is that these sites used to work fine without cookies, but now no longer do. In effect, while making a sincere (and successful!) attempt making cookie use more transparent, thereby enhancing user privacy, they unintentionally made cookie use more pervasive, thereby hurting user privacy.

I think that's a net negative.

LTheobald• 13 years ago

I'm sorry but hasn't this been the case for a good while now? I remember seeing this on the Guardian last year:

http://www.guardian.co.uk/technology/2012/may/26/cookies-law...

And isn't that why sites like The Guardian, BBC etc. have been using a banner anyway?

oliveremberton2• 13 years ago

It's significant because they're the regulator, and now they're changing to do what everyone else is, instead of telling everyone else to do what they've been doing.

onemorepassword6• 13 years ago

This is just more disinformation and FUD from the anti-privacy marketing clowns at Silktide. Nothing has changed when it comes to the EU rules on tracking cookies.

Of course it doesn't help that the UK's authority tasked with enforcing the law is utterly incompetent.

oliveremberton2• 13 years ago

How exactly am I spreading Fear, Uncertainty or Doubt here? (I wrote that article, and run Silktide).

We have no problem with privacy - quite the opposite, I wish it were being taken seriously - but this law is not remotely about that. If you look at the ICO's latest report they say their audit of sites like Facebook and Google was done purely "visually". They are literally evaluating privacy by looking for banners or legal pages, and not at say the technology or intent behind it.

This event is newsworthy because their site - which is clearly going to be looked at as an exemplar of best practice - is changing from explicit opt-in to implicit. Essentially we're now back to 2009, when sites were expected to include privacy policies that explain if they use cookies.

The stupid cookie law is dead at last

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