Last updated on 01 July 2022 by Sara Pegarella (Law school graduate, B.A. in English/Writing. In-house writer at TermsFeed)
Cookies have been used extensively since the mid-1990s by operators of websites. These small files that get placed on your computer or mobile device were at one point in time the choice tool used for creating custom and relevant online advertising, and for tracking certain usage habits of visitors to a website.
However, times have changed and cookies have crumbled.
In 2009, the European Union changed their influential ePrivacy Directive 2002/58/EC to place cookies under the scope of strict European data protection rules and regulations.
This started a legal requirement that before cookies could be placed on a user's machine, the user must give explicit consent to allow this to happen. Many companies did this through a Cookies Policy and a notice. Many users refused to give consent, and cookies got a bad reputation as being invasive and intrusive.
This is the EU Cookies Directive, also called the EU Cookies Law.
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A modern technique that operates similarly to cookies is now gaining momentum as the new tracking method of choice.
This method is known as device fingerprinting.
Device fingerprinting is basically the collection of a variety of data about a user's device and the way that device is used. The data together forms a unique profile or "fingerprint" for the device.
These bits of information include operating system information, browser versions, and plugins being used, time zone location, IP addresses, and other related characters of the device.
Here's what the MobileAppTracking SDK collects:
Cookies differ from device fingerprinting in that cookies are placed on a device and are then tracked. These cookies expire and can be deleted by users, making them somewhat unreliable and inconsistent.
Device fingerprinting is far more reliable and consistent. Fingerprints update themselves as changes are made to a device, and all of a user's information remains in that one fingerprint rather than in a number of different cookies.
Device fingerprints have much more longevity and stability, which makes them a better choice for websites or mobile apps looking to track user data.
The Article 29 Working Party, which is made up of representatives of each of the EU Member States Data Protection Authorities, has been pushing to have device fingerprinting made subject to the same EU data protection requirements and regulations as cookies.
While these recommendations are not binding, they are highly recommended. History of legislation has shown that opinions of the Article 29 Working Party are often turned into future regulations and should not be disregarded but rather treated as requirements.
Here are a few suggestions to follow before you implement device fingerprinting:
Users should be given the ability to opt out of having a device fingerprinted initially, and be given information on how to revoke consent in the future if so desired.
This is especially important since, unlike cookies, this fingerprinted information cannot just be deleted or blocked from the browser by the user.
There are a few exceptions to the required consent. These exceptions are as follows:
For example, different devices have different video capabilities and a website with video content may need to gather the data about a specific device in order to optimize the videos for playback on that device.
The clickwrap method is the most legally secure and favored method of obtaining explicit consent to fingerprinting a device of a user of your website or mobile app.
The "Browsewrap vs. Clickwrap" guide has more examples of clickwrap best practices.
Below is an example of a clickwrap method of obtaining consent on the Terms of Service of Engine Yard:
To use the clickwrap method, when a user visits your site or uses your mobile app for the first time, and before any fingerprinting takes place, make the user click on a box or a link that says he/she gives you consent.
The banner may be missed by the user.
Below is an example of a banner notice on cookies usage that may not be quite thorough enough used by Debenhams:
If the banner must be closed in order for a user to continue using the website or mobile app, that would be one step closer to being considered explicit consent; however, it still isn't a perfect method for obtaining consent.
This article is not a substitute for professional legal advice. This article does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.
01 July 2022