Agentless Backup is Not a Myth

Opinion Visit any website and there's a good chance that it will send a cookie to your computer. But unless that cookie is essential, its delivery could become illegal under a strange new plan that has, very quietly, won EU support.

Cookies are small text files that websites send to visitors' computers. Websites struggle to recognise their users without them. When someone visits OUT-LAW.COM for the first time, our site endeavours to send that visitor's computer a cookie. We do this with some help from Google, which offers a free service called Google Analytics. The Google Analytics cookie is used to count our visitors, a measure of success that we find rather helpful. This is just one way in which we use cookies. It's impossible for us to argue, though, that that cookie is essential to fulfilling the visitor's purpose.

Most websites use Google Analytics (including the site of the UK's privacy chief, at ico.gov.uk) or a similar traffic analysis tool, and that is just one use that sites make of cookies. We’re all subject to this requirement for prior consent – or so it seems. The trouble is, we don't know what the law really means. Nobody does, because the proposed law is ambiguous. (See the relevant sections or full text.)

There is a cookie law in Europe today. It comes from the Privacy and Electronic Communications Directive (11-page pdf), which says that sites using cookies must give visitors "clear and comprehensive information" about the purpose of the cookies. They must also offer visitors "the right to refuse" the use of cookies. That law was passed in 2002 and it is somewhat ambiguous – but in a way that allows for pragmatic interpretations.

The 2002 Directive did not say when or how the information had to be provided. It was implemented in the UK in a set of Regulations that parroted the Directive's ambiguous language. But our Information Commissioner, to his credit, took a pragmatic view. He published guidance (19-page pdf) that said it was acceptable to display the information in a privacy policy, asking only that "the policy should be clearly signposted at least on those pages where a user may enter a website." Usability survived, in the UK at least.

To comply with today's law is easy. Websites add a 'privacy policy' link to every page, and that policy explains their uses of cookies. The right to refuse cookies is dealt with retrospectively: you'll probably have the cookie by the time you read about it. But that's okay, the Commissioner tells us, provided the policy guides users on how they can control and delete the cookies on their machines.

Since that guidance will vary according to the user's choice of internet browser, we set up AboutCookies.org, a site to which any privacy policy can direct its readers. Lots of websites' privacy policies include a link to AboutCookies.org. You'll find instructions there for controlling and deleting cookies in various browsers, like Internet Explorer, Firefox, Safari, Opera and Chrome. (A short time later, the Interactive Advertising Bureau set up AllAboutCookies, a site that serves the same purpose.)

This simple approach to cookie compliance is under threat.

The new law says that cookies can be delivered to a user's computer only if that user "has given his/her consent, having been provided with clear and comprehensive information" unless it is "strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service."

So if I'm shopping at Amazon.co.uk and I put a book in my shopping basket, Amazon can use a cookie to remember which book I want when I proceed to the checkout. That is a cookie that's essential to the service I've explicitly requested. But if Amazon wants to use a cookie for another purpose, e.g. to monitor shopping basket abandonment, it needs my consent.

This sounds bad, but a recital to the new law sounds like an escape clause. In any Directive, recitals are listed before the formal 'Articles'. They provide an introduction to the new law, sharing the lawmakers' rationale for the provisions that follow. Curiously, the cookie recital includes a suggestion that conflicts with the main Article.

The new cookie recital says: "The user's will to accept processing may be expressed by way of using the appropriate settings of a browser or other application."

Most browsers have a default setting that allows cookies. Most people never change that (and many don't know that the setting exists). So a court might reasonably question how consent can be implied from a default setting. If no question is asked, silence does not convey consent.

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