EU ‘Cookie Law’ protects tracking tools over citizen privacy, analysis finds

The European Union’s ePrivacy Directive, commonly known as the 'Cookie Law,' may be protecting the mechanisms of digital tracking rather than the privacy of its citizens. An analysis by Tech Policy Press suggests that by focusing on the technical tools used to monitor users, the law fails to dismantle the broader surveillance economy.

At its core, the ePrivacy Directive requires websites to obtain explicit consent before storing cookies on a user's device. While intended to safeguard communications, the result has been the ubiquity of cookie banners. Tech Policy Press argues that this focus on the 'how'—the cookie—masks the 'what'—the act of surveillance. This approach effectively legitimizes a model of surveillance capitalism by providing a veneer of legal compliance through consent.

The Trap of Consent Fatigue

The proliferation of these banners has led to 'consent fatigue.' In this environment, users frequently accept tracking terms blindly just to clear their screens, granting legal permission for intrusive monitoring. This systemic failure allows data brokerage to flourish, often with devastating real-world consequences.

To illustrate the dangers of the unregulated surveillance economy, Tech Policy Press points to the US market. In 2022, Vice reported paying a data broker, SafeGraph, approximately $160 for a week's worth of aggregated location data linked to visits at over 600 Planned Parenthood clinics across the United States. Such examples highlight how easily sensitive personal movements can be commodified when the underlying act of surveillance is not the primary target of regulation.

The Pivot to New Tracking

Because the ePrivacy Directive regulates specific technologies rather than the intent of monitoring, the industry can simply evolve. If cookies become too regulated or are blocked by browsers, companies can pivot to alternative tracking methods, such as device fingerprinting. These techniques allow for the same level of intrusive monitoring while bypassing the specific legal definitions of a 'cookie,' rendering the current regulatory framework obsolete.

The Path Forward

While the technical shift toward fingerprinting and the reality of consent fatigue are widely discussed in privacy circles, the central thesis—that the Cookie Law is fundamentally a surveillance mechanism—remains an analytical argument. The debate now centers on whether privacy laws must move beyond regulating tools to banning the unauthorized brokerage of personal data entirely. If the goal is true privacy, the law must target the commodification of data rather than the browser settings used to collect it.