With a complex web of state-level social media laws emerging and data privacy regulations becoming more granular, businesses are navigating a treacherous legal and technical landscape. To shed light on these challenges, we spoke with Donald Gainsborough, a leading expert in policy and legislation from Government Curated. He breaks down the real-world implications of these new rules, from the murky definition of “selling” data through cookies to the practical headaches of implementing user privacy choices across different devices. We will explore the friction between legal requirements and technological reality, the ongoing battles over what constitutes a “necessary” cookie, and what the future holds for digital regulation.
Virginia’s new social media law has taken effect while also facing a legal challenge. What are the core requirements of this law for platform operators, and how does the ongoing legal fight create uncertainty for them? Could you walk me through the practical compliance steps a company takes?
This situation is a classic case of being caught between a rock and a hard place. The law is active, so companies must comply now, but the pending legal challenge means the rules could evaporate or change entirely. For operators, this creates a significant cloud of uncertainty over their investments in compliance. The core of the law requires them to implement robust data privacy frameworks, but the real work is in the details. A company’s first step is a comprehensive data audit to map every piece of user information they collect and share. Then, they have to re-engineer their user interface to present clear, accessible privacy choices, like the cookie banners we see everywhere. This is a costly and resource-intensive process, and the lingering lawsuit means all that effort could be for nothing, or worse, need a complete overhaul in six months. It’s a frustrating, high-stakes waiting game.
Many platforms use cookies for advertising, which can be defined as a “sale” of personal data. Given new state-level regulations, how are companies navigating this definition to stay compliant? Please provide a step-by-step example of how they might adjust their data collection and consent processes.
The key shift is that “sale” no longer just means a cash transaction; it’s about receiving any kind of value for sharing data, which squarely includes the benefits of targeted advertising. Companies are scrambling to adjust. The first step is always a deep-dive audit to classify all tracking technologies—identifying every third-party cookie from advertising partners. Next, they re-architect the user consent flow. Instead of a simple “accept” button, they must present a clear choice, often with a toggle switch, explicitly stating that opting out prevents the “sale” of personal information. The third, and most critical, step is ensuring the technology actually honors that choice. When a user toggles “off,” a signal must be sent to their advertising partners to halt the sharing of that user’s data. It’s a complex technical handshake that has to work flawlessly every time to maintain compliance.
User privacy selections are often tied to a specific browser or device, not a user account. What are the technical and logistical challenges this creates for companies trying to honor user preferences consistently? Could you detail the user experience and engineering trade-offs involved in this approach?
This is one of the biggest disconnects between user expectations and technical reality. A user thinks, “I’ve told this website not to sell my data,” but they’ve really only told one browser on one device. When they pick up their phone or open a different browser, their preference is gone, and they have to opt out all over again. The logistical challenge for companies is immense. Tracking preferences across platforms without using the very tracking technologies users are opting out of is a significant engineering puzzle. The trade-off is stark: creating a unified user profile to sync privacy settings would provide a better user experience, but it also involves collecting more data (like an email or login) and raises its own set of privacy concerns. Sticking to device-level settings is simpler to build and arguably more privacy-preserving in a narrow sense, but it creates a frustrating and fragmented experience for the end-user.
Websites often distinguish between “strictly necessary” cookies, which users cannot opt out of, and optional ones like targeting cookies. How is this distinction being legally tested by new privacy laws, and what metrics determine if a cookie is truly necessary for a site to function?
The “strictly necessary” category is becoming a major legal battleground. Historically, this was for things like keeping items in a shopping cart or remembering a login session. Now, we see companies trying to lump performance and analytics cookies into this non-consensual category. Privacy laws like the CCPA are forcing a re-evaluation. The legal test is becoming much stricter: is the website fundamentally broken without this cookie? We’re not talking about a slower experience or less insight for the marketing team. The metric is whether a core user-facing function—like logging in or completing a purchase—fails to execute. A cookie that remembers your privacy choices is clearly necessary; one that just monitors site traffic for internal performance metrics is much harder to defend as “strictly necessary” for the user’s experience, and regulators are starting to scrutinize that distinction very closely.
What is your forecast for state-level social media regulation?
My forecast is for continued, and perhaps accelerated, fragmentation. We’re going to see a patchwork of state laws emerge, each with its own unique nuances and requirements. While there’s always hope for a comprehensive federal privacy law to unify the standards, the political reality makes that a long shot for the near future. Instead, companies will be forced to navigate a complex compliance map where the rules change as you cross state lines. This will create enormous operational burdens, especially for smaller companies, and will likely lead to a “highest common denominator” approach, where businesses adopt the strictest standard across the board to simplify compliance. The end result will be a messy, evolving landscape for at least the next few years.
