At the beginning of this year, I was using my iPhone to browse new titles on Amazon when I saw the cover of “How to Break Up With Your Phone” by Catherine Price. I downloaded it on Kindle because I genuinely wanted to reduce my smartphone use, but also because I thought it would be hilarious to read a book about breaking up with your smartphone on my smartphone (stupid, I know). Within a couple of chapters, however, I was motivated enough to download Moment, a screen time tracking app recommended by Price, and re-purchase the book in print.
Early in “How to Break Up With Your Phone,” Price invites her readers to take the Smartphone Compulsion Test, developed by David Greenfield, a psychiatry professor at the University of Connecticut who also founded the Center for Internet and Technology Addiction. The test has 15 questions, but I knew I was in trouble after answering the first five. Humbled by my very high score, which I am too embarrassed to disclose, I decided it was time to get serious about curtailing my smartphone usage.
Of the chapters in Price’s book, the one called “Putting the Dope in Dopamine” resonated with me the most. She writes that “phones and most apps are deliberately designed without ‘stopping cues’ to alert us when we’ve had enough—which is why it’s so easy to accidentally binge. On a certain level, we know that what we’re doing is making us feel gross. But instead of stopping, our brains decide the solution is to seek out more dopamine. We check our phones again. And again. And again.”
Gross was exactly how I felt. I bought my first iPhone in 2011 (and owned an iPod Touch before that). It was the first thing I looked at in the morning and the last thing I saw at night. I would claim it was because I wanted to check work stuff, but really I was on autopilot. Thinking about what I could have accomplished over the past eight years if I hadn’t been constantly attached to my smartphone made me feel queasy. I also wondered what it had done to my brain’s feedback loop. Just as sugar changes your palate, making you crave more and more sweets to feel sated, I was worried that the incremental doses of immediate gratification my phone doled out would diminish my ability to feel genuine joy and pleasure.
Price’s book was published in February, at the beginning of a year when it feels like tech companies finally started to treat excessive screen time as a liability (or at least do more than pay lip service to it). In addition to the introduction of Screen Time in iOS 12 and Android’s digital wellbeing tools, Facebook, Instagram and YouTube all launched new features that allow users to track time spent on their sites and apps.
Early this year, influential activist investors who hold Apple shares also called for the company to focus on how their devices impact kids. In a letter to Apple, hedge fund Jana Partners and California State Teachers’ Retirement System (CalSTRS) wrote “social media sites and applications for which the iPhone and iPad are a primary gateway are usually designed to be as addictive and time-consuming as possible, as many of their original creators have publicly acknowledged,” adding that “it is both unrealistic and a poor long-term business strategy to ask parents to fight this battle alone.”
The growing mound of research
Then in November, researchers at Penn State released an important new study that linked social media usage by adolescents to depression. Led by psychologist Melissa Hunt, the experimental study monitored 143 students with iPhones from the university for three weeks. The undergraduates were divided into two groups: one was instructed to limit their time on social media, including Facebook, Snapchat and Instagram, to just 10 minutes each app per day (their usage was confirmed by checking their phone’s iOS battery use screens). The other group continued using social media apps as they usually did. At the beginning of the study, a baseline was established with standard tests for depression, anxiety, social support and other issues, and each group continued to be assessed throughout the experiment.
The findings, published in the Journal of Social and Clinical Psychology, were striking. The researchers wrote that “the limited use group showed significant reductions in loneliness and depression over three weeks compared to the control group.”
Even the control group benefitted, despite not being given limits on their social media use. “Both groups showed significant decreases in anxiety and fear of missing out over baselines, suggesting a benefit of increased self-monitoring,” the study said. “Our findings strongly suggest that limiting social media use to approximately 30 minutes a day may lead to significant improvement in well-being.”
Other academic studies published this year added to the growing roster of evidence that smartphones and mobile apps can significantly harm your mental and physical wellbeing.
A group of researchers from Princeton, Dartmouth, the University of Texas at Austin, and Stanford published a study in the Journal of Experimental Social Psychology that found using smartphones to take photos and videos of an experience actually reduces the ability to form memories of it. Others warned against keeping smartphones in your bedroom or even on your desk while you work. Optical chemistry researchers at the University of Toledo found that blue light from digital devices can cause molecular changes in your retina, potentially speeding macular degeneration.
So over the past 12 months, I’ve certainly had plenty of motivation to reduce my screen time. In fact, every time I checked the news on my phone, there seemed to be yet another headline about the perils of smartphone use. I began using Moment to track my total screen time and how it was divided between apps. I took two of Moment’s in-app courses, “Phone Bootcamp” and “Bored and Brilliant.” I also used the app to set a daily time limit, turned on “tiny reminders,” or push notifications that tell you how much time you’ve spent on your phone so far throughout the day, and enabled the “Force Me Off When I’m Over” feature, which basically annoys you off your phone when you go over your daily allotment.
At first I managed to cut my screen time in half. I had thought some of the benefits, like a better attention span mentioned in Price’s book, were too good to be true. But I found my concentration really did improve significantly after just a week of limiting my smartphone use. I read more long-form articles, caught up on some TV shows, and finished knitting a sweater for my toddler. Most importantly, the nagging feeling I had at the end of each day about frittering all my time away diminished, and so I lived happily after, snug in the knowledge that I’m not squandering my life on memes, clickbait and makeup tutorials.
After a few weeks, my screen time started creeping up again. First I turned off Moment’s “Force Me Off” feature, because my apartment doesn’t have a landline and I needed to be able to check texts from my husband. I kept the tiny reminders, but those became easier and easier to ignore. But even as I mindlessly scrolled through Instagram or Reddit, I felt the existentialist dread of knowing that I was misusing the best years of my life. With all that at stake, why is limiting screen time so hard?
I wish I knew how to quit you, small device
I decided to talk to the CEO of Moment, Tim Kendall, for some insight. Founded in 2014 by UI designer and iOS developer Kevin Holesh, Moment recently launched an Android version, too. It’s one of the best known of a genre that includes Forest, Freedom, Space, Off the Grid, AntiSocial and App Detox, all dedicated to reducing screen time (or at least encouraging more mindful smartphone use).
Kendall told me that I’m not alone. Moment has 7 million users and “over the last four years, you can see that average usage goes up every year,” he says. By looking at overall data, Moment’s team can tell that its tools and courses do help people reduce their screen time, but that often it starts creeping up again. Combating that with new features is one of the company’s main goals for next year.
“We’re spending a lot of time investing in R&D to figure out how to help people who fall into that category. They did Phone Bootcamp, saw nice results, saw benefits, but they just weren’t able to figure out how to do it sustainably,” says Kendall. Moment already releases new courses regularly (recent topics have included sleep, attention span, and family time) and recently began offering them on a subscription basis.
“It’s habit formation and sustained behavior change that is really hard,” says Kendall, who previously held positions as president at Pinterest and Facebook’s director of monetization. But he’s optimistic. “It’s tractable. People can do it. I think the rewards are really significant. We aren’t stopping with the courses. We are exploring a lot of different ways to help people.”
As Jana Partners and CalSTRS noted in their letter, a particularly important issue is the impact of excessive smartphone use on the first generation of teenagers and young adults to have constant access to the devices. Kendall notes that suicide rates among teenagers have increased dramatically over the past two decades. Though research hasn’t explicitly linked time spent online to suicide, the link between screen time and depression has been noted many times already, as in the Penn State study.
But there is hope. Kendall says that the Moment Coach feature, which delivers short, daily exercises to reduce smartphone use, seems to be particularly effective among millennials, the generation most stereotypically associated with being pathologically attached to their phones. “It seems that 20- and 30-somethings have an easier time internalizing the coach and therefore reducing their usage than 40- and 50-somethings,” he says.
Kendall stresses that Moment does not see smartphone use as an all-or-nothing proposition. Instead, he believes that people should replace brain junk food, like social media apps, with things like online language courses or meditation apps. “I really do think the phone used deliberately is one of the most wonderful things you have,” he says.
I’ve tried to limit most of my smartphone usage to apps like Kindle, but the best solution has been to find offline alternatives to keep myself distracted. For example, I’ve been teaching myself new knitting and crochet techniques, because I can’t do either while holding my phone (though I do listen to podcasts and audiobooks). It also gives me a tactile way to measure the time I spend off my phone because the hours I cut off my screen time correlate to the number of rows I complete on a project. To limit my usage to specific apps, I rely on iOS Screen Time. It’s really easy to just tap “Ignore Limit,” however, so I also continue to depend on several of Moment’s features.
While several third-party screen time tracking app developers have recently found themselves under more scrutiny by Apple, Kendall says the launch of Screen Time hasn’t significantly impacted Moment’s business or sign ups. The launch of their Android version also opens up a significant new market (Android also enables Moment to add new features that aren’t possible on iOS, including only allowing access to certain apps during set times).
The short-term impact of iOS Screen Time has “been neutral, but I think in the long-term it’s really going to help,” Kendall says. “I think in the long-term it’s going to help with awareness. If I were to use a diet metaphor, I think Apple has built a terrific calorie counter and scale, but unfortunately they have not given people nutritional guidelines or a regimen. If you talk to any behavioral economist, not withstanding all that’s been said about the quantified self, numbers don’t really motivate people.”
Guilting also doesn’t work, at least not for the long-term, so Moment tries to take “a compassionate voice,” he adds. “That’s part of our brand and company and ethos. We don’t think we’ll be very helpful if people feel judged when we use our product. They need to feel cared for and supported, and know that the goal is not perfection, it’s gradual change.”
Many smartphone users are probably in my situation: alarmed by their screen time stats, unhappy about the time they waste, but also finding it hard to quit their devices. We don’t just use our smartphones to distract ourselves or get a quick dopamine rush with social media likes. We use it to manage our workload, keep in touch with friends, plan our days, read books, look up recipes, and find fun places to go. I’ve often thought about buying a Yondr bag or asking my husband to hide my phone from me, but I know that ultimately won’t help.
As cheesy as it sounds, the impetus for change must come from within. No amount of academic research, screen time apps, or analytics can make up for that.
One thing I tell myself is that unless developers find more ways to force us to change our behavior or another major paradigm shift occurs in mobile communications, my relationship with my smartphone will move in cycles. Sometimes I’ll be happy with my usage, then I’ll lapse, then I’ll take another Moment course or try another screen time app, and hopefully get back on track. In 2018, however, the conversation around screen time finally gained some desperately needed urgency (and in the meantime, I’ve actually completed some knitting projects instead of just thumbing my way through #knittersofinstagram).
Huawei pushes back launch of 5G foldable, the Mate X
If you were desperately ripping days off of your calendar until you could get your hands on Huawei’s $2,600 5G foldable, the Mate X — which was originally slated to launch next month — it sounds like you’re going to have to wait a bit longer, per TechRadar which attended a press event at Huawei’s Shenzhen headquarters today.
It reports being told there is no possibility of a September launch. Instead Huawei is now aiming for November. But the company would only profess itself certain its first smartphone that folds out to a (square) tablet will launch before 2020. So it seems Mate X buyers may need to wait until circa Christmas to fondle this foldable.
It’s not clear exactly why the launch is being delayed. But — speculating wildly — we imagine it’s something to do with the fact that the screen, er, folds.
We’ve reached out to Huawei for official comment on the delay.
Huawei’s Mate X date slippage suggests Samsung will still be first to market with its (previously) delayed Galaxy Fold — which was itself delayed after a bunch of review units broke (because, well, did we tell you the screen folds?).
Last we heard, the Galaxy Fold is slated for a September release — Samsung seemingly confident it’s fixed the problem of how to make a foldable phone survive actual use.
Of course survival in the wild very much remains to be seen with any of these foldable. So expect TC’s in house hardware guru, Brian Heater, to put all of these expensively hinged touchscreens through their paces.
Returning to Huawei’s Mate X, potential buyers may not be entirely reassured to learn the company appeared to dangle rather more information about a planned sequel in front of reporters at the press event.
A sequel which may or may not have even more screens, as Huawei is apparently considering putting glass on the back. Yes, glass. (The gen-one Mate X will have a steel back.) Glass panels which it says could double as touchscreens. On the back. As well as the front. We have no idea if that means the price-tag will double too.
This theoretical quad (?) screen foldable follow-up to the still unreleased Mate X might even be released as soon as next year, according to TechRadar’s reportage. Or — again speculating wildly — it might never be released. Because, frankly, it sounds mental. But that’s the wacky world of foldables for ya.
There may be method in this madness too. Because, since smartphones turned into all-screen devices — making it almost impossible to tell one touch-sensitive slab from another — plucky Android device makers are trying to find a way to put more screen on the slab so you can see more.
If they can pull that off it might be great. However sticking a hinge right through the middle of a smartphone’s primary feature and function without that simultaneously causing problems is certainly a major engineering challenge.
Huawei’s new OS isn’t an Android replacement… yet
If making an Android alternative was easy, we’d have a lot more of them. Huawei’s HarmonyOS won’t be replacing the mobile operating system for the company anytime soon, and Huawei has made it pretty clear that it would much rather go back to working with Google than go it alone.
Of course, that might not be an option.
The truth is that Huawei and Google were actually getting pretty chummy. They’d worked together plenty, and according to recent rumors, were getting ready to release a smart speaker in a partnership akin to what Google’s been doing with Lenovo in recent years. That was, of course, before Huawei was added to a U.S. “entity list” that ground those plans to a halt.
Most EU cookie ‘consent’ notices are meaningless or manipulative, study finds
New research into how European consumers interact with the cookie consent mechanisms which have proliferated since a major update to the bloc’s online privacy rules last year casts an unflattering light on widespread manipulation of a system that’s supposed to protect consumer rights.
As Europe’s General Data Protection Regulation (GDPR) came into force in May 2018, bringing in a tough new regime of fines for non-compliance, websites responded by popping up legal disclaimers which signpost visitor tracking activities. Some of these cookie notices even ask for consent to track you.
But many don’t — even now, more than a year later.
The study, which looked at how consumers interact with different designs of cookie pop-ups and how various design choices can nudge and influence people’s privacy choices, also suggests consumers are suffering a degree of confusion about how cookies function, as well as being generally mistrustful of the term ‘cookie’ itself. (With such baked in tricks, who can blame them?)
The researchers conclude that if consent to drop cookies was being collected in a way that’s compliant with the EU’s existing privacy laws only a tiny fraction of consumers would agree to be tracked.
The paper, which we’ve reviewed in draft ahead of publication, is co-authored by academics at Ruhr-University Bochum, Germany, and the University of Michigan in the US — and entitled: (Un)informed Consent: Studying GDPR Consent Notices in the Field.
The researchers ran a number of studies, gathering ~5,000 of cookie notices from screengrabs of leading websites to compile a snapshot (derived from a random sub-sample of 1,000) of the different cookie consent mechanisms in play in order to paint a picture of current implementations.
They also worked with a German ecommerce website over a period of four months to study how more than 82,000 unique visitors to the site interacted with various cookie consent designs which the researchers’ tweaked in order to explore how different defaults and design choices affected individuals’ privacy choices.
Their industry snapshot of cookie consent notices found that the majority are placed at the bottom of the screen (58%); not blocking the interaction with the website (93%); and offering no options other than a confirmation button that does not do anything (86%). So no choice at all then.
A majority also try to nudge users towards consenting (57%) — such as by using ‘dark pattern’ techniques like using a color to highlight the ‘agree’ button (which if clicked accepts privacy-unfriendly defaults) vs displaying a much less visible link to ‘more options’ so that pro-privacy choices are buried off screen.
The GDPR updated the EU’s long-standing digital privacy framework, with key additions including tightening the rules around consent as a legal basis for processing people’s data — which the regulation says must be specific (purpose limited), informed and freely given for consent to be valid.
Even so, since May last year there has been an outgrown in cookie ‘consent’ mechanisms popping up or sliding atop websites that still don’t offer EU visitors the necessary privacy choices, per the research.
“Given the legal requirements for explicit, informed consent, it is obvious that the vast majority of cookie consent notices are not compliant with European privacy law,” the researchers argue.
“Our results show that a reasonable amount of users are willing to engage with consent notices, especially those who want to opt out or do not want to opt in. Unfortunately, current implementations do not respect this and the large majority offers no meaningful choice.”
The researchers also record a large differential in interaction rates with consent notices — of between 5 and 55% — generated by tweaking positions, options, and presets on cookie notices.
This is where consent gets manipulated — to flip visitors’ preference for privacy.
“The results show that nudges and pre-selection had a high impact on user decisions, confirming previous work,” the researchers write. “It also shows that the GDPR requirement of privacy by default should be enforced to make sure that consent notices collect explicit consent.”
Here’s a section from the paper discussing what they describe as “the strong impact of nudges and pre-selections”:
Overall the effect size between nudging (as a binary factor) and choice was CV=0.50. For example, in the rather simple case of notices that only asked users to confirm that they will be tracked, more users clicked the “Accept” button in the nudge condition, where it was highlighted (50.8% on mobile, 26.9% on desktop), than in the non-nudging condition where “Accept” was displayed as a text link (39.2% m, 21.1% d). The effect was most visible for the category-and vendor-based notices, where all checkboxes were pre-selected in the nudging condition, while they were not in the privacy-by-default version. On the one hand, the pre-selected versions led around 30% of mobile users and 10% of desktop users to accept all third parties. On the other hand, only a small fraction (< 0.1%) allowed all third parties when given the opt-in choice and around 1 to 4 percent allowed one or more third parties (labeled “other” in 4). None of the visitors with a desktop allowed all categories. Interestingly, the number of non-interacting users was highest on average for the vendor-based condition, although it took up the largest part of any screen since it offered six options to choose from.
The key implication is that just 0.1% of site visitors would freely choose to enable all cookie categories/vendors — i.e. when not being forced to do so by a lack of choice or via nudging with manipulative dark patterns (such as pre-selections).
Rising a fraction, to between 1-4%, who would enable some cookie categories in the same privacy-by-default scenario.
“Our results… indicate that the privacy-by-default and purposed-based consent requirements put forth by the GDPR would require websites to use consent notices that would actually lead to less than 0.1 % of active consent for the use of third parties,” they write in conclusion.
They do flag some limitations with the study, pointing out that the dataset they used that arrived at the 0.1% figure is biased — given the nationality of visitors is not generally representative of public Internet users, as well as the data being generated from a single retail site. But they supplemented their findings with data from a company (Cookiebot) which provides cookie notices as a SaaS — saying its data indicated a higher accept all clicks rate but still only marginally higher: Just 5.6%.
Hence the conclusion that if European web users were given an honest and genuine choice over whether or not they get tracked around the Internet, the overwhelming majority would choose to protect their privacy by rejecting tracking cookies.
This is an important finding because GDPR is unambiguous in stating that if an Internet service is relying on consent as a legal basis to process visitors’ personal data it must obtain consent before processing data (so before a tracking cookie is dropped) — and that consent must be specific, informed and freely given.
Yet, as the study confirms, it really doesn’t take much clicking around the regional Internet to find a gaslighting cookie notice that pops up with a mocking message saying by using this website you’re consenting to your data being processed how the site sees fit — with just a single ‘Ok’ button to affirm your lack of say in the matter.
It’s also all too common to see sites that nudge visitors towards a big brightly colored ‘click here’ button to accept data processing — squirrelling any opt outs into complex sub-menus that can sometimes require hundreds of individual clicks to deny consent per vendor.
You can even find websites that gate their content entirely unless or until a user clicks ‘accept’ — aka a cookie wall. (A practice that has recently attracted regulatory intervention.)
Nor can the current mess of cookie notices be blamed on a lack of specific guidance on what a valid and therefore legal cookie consent looks like. At least not any more. Here, for example, is a myth-busting blog which the UK’s Information Commissioner’s Office (ICO) published last month that’s pretty clear on what can and can’t be done with cookies.
For instance on cookie walls the ICO writes: “Using a blanket approach such as this is unlikely to represent valid consent. Statements such as ‘by continuing to use this website you are agreeing to cookies’ is not valid consent under the higher GDPR standard.” (The regulator goes into more detailed advice here.)
While France’s data watchdog, the CNIL, also published its own detailed guidance last month — if you prefer to digest cookie guidance in the language of love and diplomacy.
(Those of you reading TechCrunch back in January 2018 may also remember this sage plain english advice from our GDPR explainer: “Consent requirements for processing personal data are also considerably strengthened under GDPR — meaning lengthy, inscrutable, pre-ticked T&Cs are likely to be unworkable.” So don’t say we didn’t warn you.)
Nor are Europe’s data protection watchdogs lacking in complaints about improper applications of ‘consent’ to justify processing people’s data.
Indeed, ‘forced consent’ was the substance of a series of linked complaints by the pro-privacy NGO noyb, which targeted T&Cs used by Facebook, WhatsApp, Instagram and Google Android immediately GDPR started being applied in May last year.
While not cookie notice specific, this set of complaints speaks to the same underlying principle — i.e. that EU users must be provided with a specific, informed and free choice when asked to consent to their data being processed. Otherwise the ‘consent’ isn’t valid.
So far Google is the only company to be hit with a penalty as a result of that first wave of consent-related GDPR complaints; France’s data watchdog issued it a $57M fine in January.
But the Irish DPC confirmed to us that three of the 11 open investigations it has into Facebook and its subsidiaries were opened after noyb’s consent-related complaints. (“Each of these investigations are at an advanced stage and we can’t comment any further as these investigations are ongoing,” a spokeswoman told us. So, er, watch that space.)
The problem, where EU cookie consent compliance is concerned, looks to be both a failure of enforcement and a lack of regulatory alignment — the latter as a consequence of the ePrivacy Directive (which most directly concerns cookies) still not being updated, generating confusion (if not outright conflict) with the shiny new GDPR.
However the ICO’s advice on cookies directly addresses claimed inconsistencies between ePrivacy and GDPR, stating plainly that Recital 25 of the former (which states: “Access to specific website content may be made conditional on the well-informed acceptance of a cookie or similar device, if it is used for a legitimate purpose”) does not, in fact, sanction gating your entire website behind an ‘accept or leave’ cookie wall.
Here’s what the ICO says on Recital 25 of the ePrivacy Directive:
- ‘specific website content’ means that you should not make ‘general access’ subject to conditions requiring users to accept non-essential cookies – you can only limit certain content if the user does not consent;
- the term ‘legitimate purpose’ refers to facilitating the provision of an information society service – ie, a service the user explicitly requests. This does not include third parties such as analytics services or online advertising;
So no cookie wall; and no partial walls that force a user to agree to ad targeting in order to access the content.
It’s worth point out that other types of privacy-friendly online advertising are available with which to monetize visits to a website. (And research suggests targeted ads offer only a tiny premium over non-targeted ads, even as publishers choosing a privacy-hostile ads path must now factor in the costs of data protection compliance to their calculations — as well as the cost and risk of massive GDPR fines if their security fails or they’re found to have violated the law.)
Negotiations to replace the now very long-in-the-tooth ePrivacy Directive — with an up-to-date ePrivacy Regulation which properly takes account of the proliferation of Internet messaging and all the ad tracking techs that have sprung up in the interim — are the subject of very intense lobbying, including from the adtech industry desperate to keep a hold of cookie data. But EU privacy law is clear.
“[Cookie consent]’s definitely broken (and has been for a while). But the GDPR is only partly to blame, it was not intended to fix this specific problem. The uncertainty of the current situation is caused the delay of the ePrivacy regulation that was put on hold (thanks to lobbying),” says Martin Degeling, one of the research paper’s co-authors, when we suggest European Internet users are being subject to a lot of ‘consent theatre’ (ie noisy yet non-compliant cookie notices) — which in turn is causing knock-on problems of consumer mistrust and consent fatigue for all these useless pop-ups. Which work against the core aims of the EU’s data protection framework.
“Consent fatigue and mistrust is definitely a problem,” he agrees. “Users that have experienced that clicking ‘decline’ will likely prevent them from using a site are likely to click ‘accept’ on any other site just because of one bad experience and regardless of what they actually want (which is in most cases: not be tracked).”
“We don’t have strong statistical evidence for that but users reported this in the survey,” he adds, citing a poll the researchers also ran asking site visitors about their privacy choices and general views on cookies.
Degeling says he and his co-authors are in favor of a consent mechanism that would enable web users to specify their choice at a browser level — rather than the current mess and chaos of perpetual, confusing and often non-compliant per site pop-ups. Although he points out some caveats.
“DNT [Do Not Track] is probably also not GDPR compliant as it only knows one purpose. Nevertheless something similar would be great,” he tells us. “But I’m not sure if shifting the responsibility to browser vendors to design an interface through which they can obtain consent will lead to the best results for users — the interfaces that we see now, e.g. with regard to cookies, are not a good solution either.
“And the conflict of interest for Google with Chrome are obvious.”
The EU’s unfortunate regulatory snafu around privacy — in that it now has one modernized, world-class privacy regulation butting up against an outdated directive (whose progress keeps being blocked by vested interests intent on being able to continue steamrollering consumer privacy) — likely goes some way to explaining why Member States’ data watchdogs have generally been loath, so far, to show their teeth where the specific issue of cookie consent is concerned.
At least for an initial period the hope among data protection agencies (DPAs) was likely that ePrivacy would be updated and so they should wait and see.
They have also undoubtedly been providing data processors with time to get their data houses and cookie consents in order. But the frictionless interregnum while GDPR was allowed to ‘bed in’ looks unlikely to last much longer.
Firstly because a law that’s not enforced isn’t worth the paper it’s written on (and EU fundamental rights are a lot older than the GDPR). Secondly, with the ePrivacy update still blocked DPAs have demonstrated they’re not just going to sit on their hands and watch privacy rights be rolled back — hence them putting out guidance that clarifies what GDPR means for cookies. They’re drawing lines in the sand, rather than waiting for ePrivacy to do it (which also guards against the latter being used by lobbyists as a vehicle to try to attack and water down GDPR).
And, thirdly, Europe’s political institutions and policymakers have been dining out on the geopolitical attention their shiny privacy framework (GDPR) has attained.
Much has been made at the highest levels in Europe of being able to point to US counterparts, caught on the hop by ongoing tech privacy and security scandals, while EU policymakers savor the schadenfreude of seeing their US counterparts being forced to ask publicly whether it’s time for America to have its own GDPR.
With its extraterritorial scope, GDPR was always intended to stamp Europe’s rule-making prowess on the global map. EU lawmakers will feel they can comfortably check that box.
However they are also aware the world is watching closely and critically — which makes enforcement a very key piece. It must slot in too. They need the GDPR to work on paper and be seen to be working in practice.
So the current cookie mess is a problematic signal which risks signposting regulatory failure — and that simply isn’t sustainable.
A spokesperson for the European Commission told us it cannot comment on specific research but said: “The protection of personal data is a fundamental right in the European Union and a topic the Juncker commission takes very seriously.”
“The GDPR strengthens the rights of individuals to be in control of the processing of personal data, it reinforces the transparency requirements in particular on the information that is crucial for the individual to make a choice, so that consent is given freely, specific and informed,” the spokesperson added.
“Cookies, insofar as they are used to identify users, qualify as personal data and are therefore subject to the GDPR. Companies do have a right to process their users’ data as long as they receive consent or if they have a legitimate interest.”
All of which suggests that the movement, when it comes, must come from a reforming adtech industry.
With robust privacy regulation in place the writing is now on the wall for unfettered tracking of Internet users for the kind of high velocity, real-time trading of people’s eyeballs that the ad industry engineered for itself when no one knew what was being done with people’s data.
GDPR has already brought greater transparency. Once Europeans are no longer forced to trade away their privacy it’s clear they’ll vote with their clicks not to be ad-stalked around the Internet too.
The current chaos of non-compliant cookie notices is thus a signpost pointing at an underlying privacy lag — and likely also the last gasp signage of digital business models well past their sell-by-date.
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