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Consent spam

openRTB.pngThis week the system of adtech that constantly shoves banners in our face demanding consent to use tracking cookies was ruled illegal by the Belgian Data Protection Authority, leading 28 EU data protection authorities. The Internet Advertising Bureau, whose Transparency and Consent Framework formed the basis of the complaint that led to the decision, now has two months to redesign its system to bring it into compliance with the General Data Protection Regulation.

The ruling marks a new level of enforcement that could begin to see the law's potential fulfilled.

Ever since May 2018, when GDPR came into force, people have been complaining that so far all we've really gotten from it is bigger! worse! more annoying! cookie banners, while the invasiveness of the online advertising industry has done nothing but increase. In a May 2021 report, for example, Access Now examined the workings of GDPR and concluded that so far the law's potential had yet to be fulfilled and daily violations were going unpunished - and unchanged.

There have been fines, some of them eye-watering, such as Amazon' s 2021 fine of $877 million for its failure to get proper consent for cookies. But even Austrian activist lawyer Max Schrems' repeated European court victories have so far failed to force structural change, despite requiring the US and EU to rethink the basis of allowing data transfers.

To "celebrate" last week's data protection day, Schrems documented the situation: since the first data protection laws were passed,enforcement has been rare. Schrems' NGO, noyb, has plenty of its own experience to drawn on. Of the 51 individual cases noyb has filed in Europe since its founding in 2018, only 15% have been decided wthin a year, none of them pan-European. Four cases filed with the Irish DPA in May 2018, the day after GDPR came into force, have yet to be given a final decision.

Privacy International, which filed seven complaints against adtech companies in 2018, also has an enforcement timeline. Only one, against Experian, resulted in an investigation, and even in that case no action has been taken since Experian's appeal in 2021. A recent study of diet sites showed that they shared the sensitive information they collect with unspecified third parties, PI senior tecnologist Eliot Bendinelli told last week's Privacy Camp. PI's complaint is yet to be enforced, though it has led some companies to change their practices.

Bendinelli was speaking on a panel trying to learn from GDPR's enforcement issues in order to ensure better protection of fundamental rights from the EU's upcoming Digital Services Act. Among the complaints with respect to GDPR: the lack of deadlines to spur action and inconsistencies among the different national authorities.

The complaint at the heart of this week's judgment began in 2018, when Open Rights Group director Jim Killock, UCL researcher Michael Veale, and Irish Council on Civil Liberties senior fellow Johnny Ryan took the UK Information Commissioner's Office to court over the ICO's lack of action regarding real-time bidding, which the ICO itself had found illegal under the UK's Data Protection Act (2018), the UK's post-Brexit GDPR clone. In real-time bidding, your visit to a participating web page launches an instant mini-auction to find the advertiser willing to pay the most to fill the ad space you're about to see. Your value is determined by crunching all the data the site and its external sources have or can get about you.

If all this sounds like it oughtta be illegal under GDPR, well, yes. Enter the IAB's TCF, which extracts your permission via those cookie consent banners. With many of these, dark patterns design make "consent" instant and rejection painfully slow. The Big Tech sites, of course, handle all this by using logins; you agree to the terms and conditions when you create your account and then you helpfully forget how much they learn about you every time you use the site.

In December 2021, the UK's Upper Tribunal refused to require the ICO to reopen the complaint, though it did award Killock and Veal concessions they hope will make the ICO more accountable in future.

And so back to this week's judgment that the IAB's TCF, which is used on 80% of the European Internet, is illegal. The Irish DPA is also investigating Google's similar system, as well as Quantcast's consent management system. On Twitter, Ryan explained the gist: cookie-consent pop-ups don't give publishers adequate user consent, and everyone must delete all the data they've collected.

Ryan and the Open Rights Group also point out that the judgment spikes the UK government's claim that revamping data protection law is necessary to get rid of cookie banners (at the expense of some of the human rights enshrined in the law). Ryan points to DuckDuckGo as an example of the non-invasive alternative: contextual advertising. He also observed that all that "consent spam" makes GDPR into merely "compliance theater".

Meanwhile, other moves are also making their mark. Also this week, Facebook (Meta)'s latest earnings showed that Apple's new privacy controls, which let users opt out of tracking, will cost it $10 billion this year. Apparently 75% of Apple users opt out.

Moral: given the tools and a supportive legal environment, people will choose privacy.

Illustrations: Diagram of OpenRTB, from the Belgian decision.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.


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