Enforcement of the European Union’s General Data Protection Regulation is coming very, very soon. Look busy. This regulation is not limited to companies based in the EU—it applies to any service anywhere in the world that can be used by citizens of the EU.

Jeremy Keith
Jeremy Keith
29th January 2018

It's less about data protection and more like a user's bill of rights. That's good. Cennydd has written a techie’s rough guide to GDPR.

The Open Data Institute's Jeni Tennison wrote down her thoughts on how it could change data portability in particular. While she welcomes GDPR, she has some misgivings.

Blaine—who really needs to get a blog—shared his concerns in the form of the online equivalent of interpretive dance ...a twitter thread (it's called a thread because it inevitably gets all tangled, and it's easy to break.)

The interesting thing about the so-called "cookie law" is that it makes no mention of cookies whatsoever. It doesn't list any specific technology. Instead it states that any means of tracking or identifying users across websites requires disclosure. So if you're setting a cookie just to manage state—so that users can log in, or keep items in a shopping basket—the legislation doesn't apply. But as soon as your site allows a third-party to set a cookie, it's banner time.

Google Analytics is a classic example of a third-party service that uses cookies to track people across domains. That's pretty much why it exists. We, as site owners, get to use this incredibly powerful tool, and all we have to do in return is add one little snippet of JavaScript to our pages. In doing so, we're allowing a third party to read or write a cookie from their domain.

Before Google Analytics, Google—the search engine business—was able to identify and track what users were searching for, and which search results they clicked on. But as soon as the user left google.com, the trail went cold. By creating an enormously useful analytics product that only required site owners to add a single line of JavaScript, Google—the online advertising business—gained the ability to keep track of users across most of the web, whether they were on a site owned by Google or not.

Under the old "cookie law", using a third-party cookie-setting service like that meant you had to inform any of your users who were citizens of the EU. With GDPR, that changes. Now you have to get consent. A dismissible little overlay isn't going to cut it any more. Implied consent isn't enough.

Now this situation raises an interesting question. Who's responsible for getting consent? Is it the site owner or the third party whose script is the conduit for the tracking?

In the first scenario, you'd need to wait for an explicit agreement from a visitor to your site before triggering the Google Analytics functionality. Suddenly it's not as simple as adding a single line of JavaScript to your site.

In the second scenario, you don't do anything differently than before—you just add that single line of JavaScript. But now that script would need to launch the interface for getting consent before doing any tracking. Google Analytics would go from being something invisible to something that directly impacts the user experience of your site.

I'm just using Google Analytics as an example here because it's so widespread. This also applies to third-party sharing buttons—Twitter, Facebook, etc.—and of course, advertising.

In the case of advertising, it gets even thornier because quite often, the site owner has no idea which third party is about to do the tracking. Many, many sites use intermediary services (y'know, 'cause bloated ad scripts aren't slowing down sites enough so let's throw some just-in-time bidding into the mix too). You could get consent for the intermediary service, but not for the final advert—neither you nor your site's user would have any idea what they were consenting to.

Interesting times. One way or another, a massive amount of the web—every website using Google Analytics, embedded YouTube videos, Facebook comments, embedded tweets, or third-party advertisements—will be liable under GDPR.

It's almost as if the ubiquitous surveillance of people's every move on the web wasn't a very good idea in the first place.

This was originally posted on my own site.