in any way other than market competition forcing all major browsers to implement the feature, in which case it doesn’t practically matter whether the implementation requirement has legal weight.
I think it does matter? It’s not clear that browsers can be required to do this, and even if it were legal to require them to it’s not a good precedent. On the other hand, browsers working together with regulators and site owners to make a new technical standard (to communicate shared browser status) + rules (so it’s legal to use the technical standard to not prompt about cookies) so users can have a better experience would be clearly legal and a great precedent.
(I have maybe a bit of special knowledge, in that I worked with a browser team and regulatory lawyers 2020-2022 but I’m not claiming to be an expert on how regulations and browsers change!)
Fair enough, although I put a little less weight on the undesirable precedent because I think that precedent is already largely being set today. (Once we have precedents for regulating specific functionality of both operating systems and individual websites, I feel like it’s only technically correct to say that the case for similar regulation in browsers is unresolved.)
Also, the current legal standard just says that websites must give users a choice about the cookies; it doesn’t seem to say what the mechanism for that choice must be. The interpretation that the choice must be expressed via the website’s interface and cannot be facilitated by browser features is an interpretation, and I’d argue against that interpretation of the directive. I don’t see why browsers couldn’t create a ‘Do-Not-Track’-style preference protocol today for conveying a user’s request for necessary cookies vs all cookies vs an explicit prompt for selecting between types of optional cookies, nor any reason why sites couldn’t rely on that hypothetical protocol to avoid showing cookie preference prompts to many of their users (as long as the protocol specified that the browsers must require an explicit user choice before specifying any of the options that can skip cookie prompts; defaulting users to “necessary cookies only” or the all-cookies-without-prompts setting would break the requirement for user choice).
But we don’t see initiatives like that, presumably in large part because browsers don’t expect to see much adoption if they implement such a feature, especially since it’s the type of feature that requires widespread adoption from all parties (browser makers, site owners, and users) before it creates much value. Instead, lots of sites show cookie banners to you and I while we browse the web from American soil using American IP addresses, seemingly because targeting different users with different website experiences is just too sophisticated for many businesses. They evidently see this as a compliance requirement to be met at minimal cost rather than prioritizing the user experience. I don’t see how the current dynamic changes as long as websites still see this purely as a compliance cost to be minimized and as long as each website still needs to maintain their own consent implementations?
I think it does matter? It’s not clear that browsers can be required to do this, and even if it were legal to require them to it’s not a good precedent. On the other hand, browsers working together with regulators and site owners to make a new technical standard (to communicate shared browser status) + rules (so it’s legal to use the technical standard to not prompt about cookies) so users can have a better experience would be clearly legal and a great precedent.
(I have maybe a bit of special knowledge, in that I worked with a browser team and regulatory lawyers 2020-2022 but I’m not claiming to be an expert on how regulations and browsers change!)
Fair enough, although I put a little less weight on the undesirable precedent because I think that precedent is already largely being set today. (Once we have precedents for regulating specific functionality of both operating systems and individual websites, I feel like it’s only technically correct to say that the case for similar regulation in browsers is unresolved.)
Also, the current legal standard just says that websites must give users a choice about the cookies; it doesn’t seem to say what the mechanism for that choice must be. The interpretation that the choice must be expressed via the website’s interface and cannot be facilitated by browser features is an interpretation, and I’d argue against that interpretation of the directive. I don’t see why browsers couldn’t create a ‘Do-Not-Track’-style preference protocol today for conveying a user’s request for necessary cookies vs all cookies vs an explicit prompt for selecting between types of optional cookies, nor any reason why sites couldn’t rely on that hypothetical protocol to avoid showing cookie preference prompts to many of their users (as long as the protocol specified that the browsers must require an explicit user choice before specifying any of the options that can skip cookie prompts; defaulting users to “necessary cookies only” or the all-cookies-without-prompts setting would break the requirement for user choice).
But we don’t see initiatives like that, presumably in large part because browsers don’t expect to see much adoption if they implement such a feature, especially since it’s the type of feature that requires widespread adoption from all parties (browser makers, site owners, and users) before it creates much value. Instead, lots of sites show cookie banners to you and I while we browse the web from American soil using American IP addresses, seemingly because targeting different users with different website experiences is just too sophisticated for many businesses. They evidently see this as a compliance requirement to be met at minimal cost rather than prioritizing the user experience. I don’t see how the current dynamic changes as long as websites still see this purely as a compliance cost to be minimized and as long as each website still needs to maintain their own consent implementations?