The Planner's Dream Goes Wrong

Posted on 11th May 2011

On May 26th 2011, UK websites must adhere to a EU directive regarding cookies, that still hasn't been finalised. Other member states of the EU are also required to have laws in place that enforce the directive.

Within the web developer world this has caused a considerable amount of confusion and annoyance, for a variety of reasons, and has enabled media outlets to scaremonger the doom and gloom that could befall developers, businesses and users. It wouldn't be so bad if there was a clear piece of legislation that could be read, understood and followed, but there isn't. Even the original EU directives are vague in the presentation of their requirements.

If you have the time and/or inclination the documents to read are Article 2 of Directive 2009/136/EC (the Directive), which amends the E-Privacy Directive 2002/58/EC (the E-Privacy Directive), with both part of the EU Electronic Communications Framework (ECF).

Aside from the ludicrous situation of trying to enforce a law with no actual documentation to abide by (George Orwell would have a field day), and questioning why we are paying polictians for this shambolic situation, I have to question the motives behind the creation of this directive.

The basic Data Protection premise for tightening up the directive is a reasonable one, however the way it has been presented is potentially detremental to the way developers, businesses and users, particularly in the EU, are going to browse and use the internet. The directive needed tightening due to the way advertisers use cookies to track users as they browse the web and target adverts. There has been much to complain about in this regard, and far beyond the use of cookies with companies such as Phorm trying to track information at the server level too. However, the directive has ended up being too vague and covers too wide a perspective to tackle the problem effectively.

Others have already questioned whether it could push users to use non-EU websites to do their business because they get put off using EU based sites. Continually being asked whether you want to have information stored in a cookie every time you visit a website is going to get pretty tiresome pretty quickly. You see, if you do not consent to the use of cookies, that information cannot be saved in a cookie, and so when revisiting the site, the site doesn't know you said no, and will ask you all over again. For those happy to save simple preferences and settings stored in cookies, then you'll be asked once and never again. If you need an example of how bad it could get, Paul Carpenter took a sartirical look at a possible implementation.

On Monday 9th May 2011, the Information Commissioner's Office (ICO) issued an advice notice to UK businesses and organisation on how to comply with the new law. However even their own advice states the document "is a starting point for getting compliant rather than a definitive guide." They even invent cookie types that don't exist! Apparently "Flash Cookies" is a commonly used term, except in the web technology world there are just two types of cookie, Persistent Cookies and Session Cookies. They even reference the website AllAboutCookies, which makes no mention of "Flash Cookies". Still not convinced this is a complete shambolic mess?

The directives currently state that only cookies that are "strictly necessary" to the consumer are exempt from the ruling. In most cases shopping carts have been used as an example of cookie usage which would be exempt. However, it doesn't exempt all 1st party cookies (those that come from the originating domain), and especially targets 3rd party cookies (from other domains). The advice states "The exception would not apply, for example, just because you have decided that your website is more attractive if you remember users' preferences or if you decide to use a cookie to collect statistical information about the use of your website." Both of which have significant disruption potential for both websites and their visitors.

Many of the 1st party cookies I use are Session Cookies, which either store an encrypted key to keep you logged into the site, or store preferences to hide/show elements of the site. You could argue both are strictly necessary or not depending on your view. Of the 3rd party cookies, like many people these days, I use Google Analytics to study the use of my websites. Of particular interest to me is how people find the site, and the search words used that brough the visitor to the site. It could be argued that these are strictly necessary to help allow the site visitor find the site in the first place. Okay its a weak argument, but the point remains that people use these types of analysis to improve their sites and make the visitor experience more worthwhile.

Understandly many people have questioned the implications of using Google Analytics, and on one Google forum thread, the Google approved answer seems to imply that it will only mean websites make it clearer that they use Google Analtyics. However this is at odds with the ICO advice, which says that that isn't enough to comply with the law.

If the ruling had been more explicit about consent for the storing of personal data in cookies, such as a name or e-mail address, or the use of cookies to create a personal profile, such as with advertisier tracking cookies, it would have been much more reasonable and obvious what is permissible. Instead it feels like the politicians are using a wrecking ball to take out a few bricks, but then aiming at the wrong wall.

For a site like CPAN Testers Reports, it is quite likely that I will have to block anyone using the site, unless they explictly allow me to use cookies. The current plan is to redirect people to the static site, which will have Google Analytics switched off, and has no other cookies to require consent. It also doesn't have the full dynamic driven content of the main site. In Germany, which already has much stricter requirements for data protection, several personal bloggers have choosen to not use Google Analytics at all in case they are prosecuted. I'm undecided at the moment whether I will remove GA from my websites, but will watch with interest whether other bloggers use pop-ups or remove GA from their sites.

Perhaps the most frustrating aspect of the directives and the advice is that it discusses only website compliance. It doesn't acknowledge that the websites and services may be hosted on servers outside the EU, although the organisation or domain may have been registered within the EU. It also doesn't differentiate between commercial businesses, voluntary organisations or individuals. Personal bloggers are just as at risk to prosecution as multinational, multibillion [currency of choice] businesses. The ICO is planning to issue a separate guidance on how they intend to enforce these Regulations, but no timescale is given. I hope that they make it absolutely clear that commercial businesses, voluntary organisations or individuals will all be treated differently from each other.

In their eagerness to appear to be doing something, the politicians, in their ignorance, have crafted a very misguided ruling that will largely fail to prevent the tracking of information and creation of personal profiles, which was the original intent of the changes. When companies, such as Phorm, can create all this personal information on their servers, using the same techology to capture the data, but sending it back to a server, rather than saving a cookie, have these directives actually protected us? By and large this will be a resounding No. Have they put in place a mission to disrupt EU business and web usage, and deter some from using EU based websites? Definitely. How much this truly affects web usage remains to be seen, but I suspect initially there will be an increase in pop-ups appearing on websites asking to use cookies.

It will also be interesting to see how many government websites adhere to the rulings too.


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