Website cookies are small text files that websites store in your browser to remember information about you, making your experience easier by keeping you logged in, remembering preferences, and personalizing content or ads, but they also track your activity across sites, raising privacy concerns. They work by sending identifying data to your browser, which stores it and sends it back to the server on future visits, enabling “memory” for the otherwise stateless web. When cookies began to be widely adopted by websites in the late 90s, concerns were raised about user privacy and those concerns have not died down ever since. As personal data collected from cookies are aggressively being used by ad networks to target ads, privacy concerns regarding cookies have been increasing in recent times and have included provisions that regulate the use of cookies. For example: The ePrivacy Directive, also known as the EU cookie law is a directive passed by the European Union that regulates the use of cookies, email marketing, and other forms of electronic communication. Regarding cookies, the Directive requires websites to get prior consent before placing cookies and trackers on a user’s device, except for strictly necessary cookies that are essential for the basic function of a website. The Directive was adopted in the UK as Privacy and Electronic Communications Regulations (PECR). In addition, several countries have also enacted regulations on cookie privacy and several major companies have voluntarily followed the UK Privacy regulation. The United States does not have a federal or national law regarding the privacy requirements of cookies. (Under the commerce clause, since the internet is between states the Congress, under the constitution, could pass such a law) However, California and Virginia both have passed laws similar to the EU privacy regulation, regulating cookie privacy for company websites doing business in their states. You are the legislative assistant to Senator Elizabeth Warren of Mass and she asks you to write her a one-page opinion paper on whether or not she should introduce a bill making it federal or national law that all website owners be required to obtain prior consent before placing cookies on a user’s device. Explain your reasons as to why or why not you would recommend such legislation to become federal law to her.
