In the rapidly shifting landscape of technology law, few minds are as sharp as Donald Gainsborough. As the leader of Government Curated, he navigates the complex intersection of policy, legislation, and digital privacy. Today, we delve into the growing tension between state-level internet regulation, exemplified by a recent federal court ruling against Louisiana’s social media age-check law, and the intricate world of website data collection. We’ll explore the practical distinctions between essential website functions and the “sale” of personal data under laws like the CCPA, uncovering how those tiny text files called cookies have become a central battleground for consumer rights and corporate marketing.
A federal judge found Louisiana’s age-check law for social media unconstitutional. Based on precedent, what key legal arguments likely led to this decision, and what specific steps might the state take to craft a more legally sound version of such a law?
When a law like this gets struck down, it’s almost always on First Amendment grounds. Courts are incredibly skeptical of regulations that could chill protected speech, and forcing users to verify their age before accessing a platform is a significant barrier. The legal argument likely centered on the law being overly broad, sweeping in adults’ constitutionally protected right to access information anonymously. To create a more durable law, the state would need to narrow its focus dramatically. Instead of a blanket age-gate, they could explore less restrictive means, perhaps by empowering platforms with better tools for parents to set controls, or focusing enforcement on platforms that specifically target minors with harmful content, rather than restricting access for everyone.
Your policy differentiates between “Strictly Necessary Cookies” and “Targeting Cookies.” Can you describe the key performance metrics you monitor with necessary cookies, and walk us through the technical process behind the toggle switch that allows users to opt out of targeted advertising?
Absolutely. With our “Strictly Necessary Cookies,” we aren’t looking at who you are, but how the site is performing for you. The key metrics are functional: Is the cookie banner being prompted correctly? Are we remembering your privacy choices so we don’t have to ask you on every single page? We also monitor site performance metrics like page load times and identify broken links. These are essential for the basic operation of the website. The toggle switch for “Targeting Cookies” works differently. When you flip that switch to opt-out, our website sets a specific first-party cookie on your browser that basically acts as a command. This command tells our site not to fire the scripts that would call on our third-party advertising partners for your session, effectively preventing the “sale” of your data to them. It’s a localized instruction; that’s why it only applies to the browser and device you’re using at that moment.
The text states that third-party cookies from a different domain are used for advertising. Could you explain the step-by-step data exchange that occurs between your website and a third-party advertiser, perhaps sharing an anecdote on how this tracking improves marketing efforts?
It’s a fascinating, almost instantaneous process. Imagine you visit our website to read about policy updates. When the page loads, it doesn’t just load our text and images; it also loads a tiny, invisible pixel from an advertising partner’s domain. That partner’s domain then places a third-party cookie in your browser. This cookie is like a digital ticket stub; it doesn’t have your name on it, but it remembers you visited our site. Later, when you’re on a completely different website that’s part of the same advertising network, that site sees the cookie and says, “Ah, this is a user interested in policy.” It then serves you an ad from us. We saw this work beautifully in a recent campaign. We had a group of users who spent time on our policy pages but didn’t sign up for our newsletter. By using this tracking, we could gently remind them of our work on other sites, which led to a significant uptick in subscriptions from an already-engaged audience.
Regarding the “Sale of Personal Data” section, the CCPA’s definition of a “sale” is critical. Could you elaborate on what distinguishes cookie usage that constitutes a “sale” from necessary site monitoring, and provide a clear example of a data practice that would cross that line?
The distinction under the CCPA is all about the purpose and the exchange. Necessary site monitoring is an internal affair. We use first-party cookies to see if our website is loading quickly or if users are encountering errors. The data is used exclusively by us to improve our own service. A “sale,” however, involves making personal information available to a third party in exchange for some monetary or other valuable consideration. The classic example that crosses the line is when we allow an advertising network to place a cookie that tracks your browsing activity on our site. We receive a benefit—the ability to show you personalized ads later—and they receive your data. That exchange is defined as a sale under the CCPA, which is precisely why we are legally required to provide that opt-out toggle switch.
What is your forecast for the future of state-level internet regulation and its impact on website cookie and data privacy policies across the U.S.?
I foresee a period of increasingly complex fragmentation before we see any kind of national harmony. The Louisiana ruling is a perfect example of a state trying to legislate online behavior and running into constitutional roadblocks. Meanwhile, you have comprehensive privacy laws like the CCPA creating a high-water mark for data handling. We’re going to see more states follow California’s lead, but each will likely add its own unique twist, creating a patchwork of different regulations. This will be a massive compliance headache for businesses, which will have to tailor their cookie banners and privacy policies for users in different states. Ultimately, this growing complexity will exert immense pressure on Congress to pass a federal privacy law to create a single, unified standard for the entire country. But until that day comes, the states will remain the primary drivers of innovation and change in U.S. privacy law.
