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β₯ Engineering Consent
Anthony Ha, of TechCrunch, interviewed Jean-Paul Schmetz, CEO of Ghostery, and I will draw your attention to this exchange:
AH I want to talk about both of those categories, Big Tech and regulation. You mentioned that with GDPR, there was a fork where thereβs a little bit of a decrease in tracking, and then it went up again. Is that because companies realized they can just make people say yes and consent to tracking?
J-PS What happened is that in the U.S., it continued to grow, and in Europe, it went down massively. But then the companies started to get these consent layers done. And as they figured it out, the tracking went back up. Is there more tracking in the U.S. than there is in Europe? For sure.
AH So it had an impact, but it didnβt necessarily change the trajectory?
J-PS It had an impact, but itβs not sufficient. Because these consent layers are basically meant to trick you into saying yes. And then once you say yes, they never ask again, whereas if you say no, they keep asking. But luckily, if you say yes, and you have Ghostery installed, well, it doesnβt matter, because we block it anyway. And then Big Tech has a huge advantage because they always get consent, right? If you cannot search for something in Google unless you click on the blue button, youβre going to give them access to all of your data, and you will need to rely on people like us to be able to clean that up.
The TechCrunch headline summarizes this by saying βregulation wonβt save us from ad trackersβ, but I do not think that is a fair representation of this argument. What it sounds like, to me, is that regulations should be designed more effectively.
The E.U.βs ePrivacy Directive and GDPR have produced some results: tracking is somewhat less pervasive, people have a right to data access and portability, and businesses must give users a choice. That last thing is, as Schmetz points out, also its flaw, and one it shares with something like App Tracking Transparency on iOS. Apps affected by the latter are not permitted to keep asking if tracking is denied, but they do similarly rely on the assumption a user can meaningfully consent to a cascading system of trackers.
In fact, the similarities and differences between cookie banner laws and App Tracking Transparency are considerable. Both require some form of consent mechanism immediately upon accessing a website or an app, assuming a user can provide that choice. Neither can promise tracking will not occur should a user deny the request. Both are interruptive.
But cookie consent laws typically offer users more information; many European websites, for example, enumerate all their third-party trackers, while App Tracking Transparency gives users no visibility into which trackers will be allowed. The latter choice is remembered forever unless a user removes and reinstalls the app, while websites can ask you for cookie consent on each visit. Perhaps the latter may sometimes be a consequence of using Safari; it is hard to know.
App Tracking Transparency also has a system-wide switch to opt out of all third-party tracking. There used to be something similar in web browsers, but compliance was entirely optional. Its successor effort, Global Privacy Control, is sadly not as widely supported as it ought to be, but it appears to have legal teeth.
Both of these systems have another important thing in common: neither are sufficiently protective of usersβ privacy because they burden individuals with the responsibility of assessing something they cannot reasonably comprehend. It is patently ridiculous to put the responsibility on individuals to mitigate a systemic problem like invasive tracking schemes.
There should be a next step to regulations like these because user tracking is not limited to browsers where Ghostery can help β if you know about it. A technological response is frustrating and it is unclear to me how effective it is on its own. This is clearly not a problem only regulation can solve but neither can browser extensions. We need both.
