Your Cookie Banner Might Be Working Against You: Two Compliance Traps to Avoid
The plaintiffs’ bar has been ramping up lawsuits for alleged violations of state and federal wiretapping laws (e.g., California CIPA, Florida SCA, Federal ECPA) for many months now. Historically, the main issue has been that the defendant did not get the necessary consent because they did not try to do so, meaning there was no cookie consent mechanism in place. Recently, the claims have shifted, and plaintiffs are taking issue with whether and how your cookie banner actually performs. When “Reject” Doesn’t Actually Mean Reject A scenario plaintiffs’ counsel loves is the following: A user lands on a website. A cookie banner pops up. The user clicks “Necessary Cookies Only” or toggles off every non-essential category (performance, functional, targeting, the works). The banner disappears. The user browses assuming that the tracking has stopped, when, in actuality, analytics and advertising tags continue to fire. This scenario has now been the subject of many complaints, often suppor...