[HN Gopher] CNIL makes Google Analytics almost illegal in France
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       CNIL makes Google Analytics almost illegal in France
        
       Author : nephanth
       Score  : 93 points
       Date   : 2022-07-27 18:16 UTC (4 hours ago)
        
 (HTM) web link (www.cnil.fr)
 (TXT) w3m dump (www.cnil.fr)
        
       | bumper_crop wrote:
       | This is great news! For far too long, Website owners have been
       | collecting data on their users at no benefit to the users
       | themselves. When website owners try to collect data on their
       | users (for any and all reasons) it just violates the privacy of
       | those people and needs to be put to an end. Those French website
       | runners should really create their own, CNIL and GDPR compliant
       | anonymized data storing, rather than using off the shelf, low
       | cost alternatives. After all, things have been a bit too easy for
       | them. (Running a website is pretty easy, I would know!). In fact,
       | The fact that other, compliant-data aggregators, offer fewer
       | features and lower reliability is actually a good thing. Trying
       | to improve your website or even pester me with whatever you made
       | is just irritating spam; I can't believe those independent owners
       | would even dare. They should just be flushed out of existence.
       | 
       | HEY! Why is everything being centralized to just a few services?
       | Why is the web dying?!
        
       | MR4D wrote:
       | Actual title is "Q&A on the CNIL's formal notices concerning the
       | use of Google Analytics".
       | 
       | This editorializing by the OP is a bit too far.
        
       | gigel82 wrote:
       | Server side GTM (and similar devious tactics) should be what gets
       | legislated (since that's the thing that adblockers can't protect
       | us against).
        
         | tremon wrote:
         | The GDPR legislation is about means and goals, not specific
         | implementations. What makes you think GTM isn't similarly
         | illegal already?
        
           | gigel82 wrote:
           | That's great, and we need more legislation (on this side of
           | the pond as well).
        
         | closewith wrote:
         | Adblockers can still (and do) protect against server-side GTM,
         | as the requests are not obfuscated in any way. That may change
         | in the future, but it's not the case now.
         | 
         | Besides, the CNIL ruling already applies to server-side GTM
         | implementations.
        
           | pieterhg wrote:
           | How?
        
           | gigel82 wrote:
           | Once server-side analytics get implemented widely, we've
           | lost. We'll keep chasing each other with tricks like renaming
           | the api endpoints, randomizing the javascript hash, etc. for
           | a while but if we end up having to run an ML model in the
           | browser to attempt to detect when our data is being stolen
           | we've lost a long time before.
           | 
           | Might be better to shame any website caught using it with
           | some crowd-sourced list of some kind - then at least we'd
           | know who the bad actors are and force their content through
           | an isolated container / proxy / VPN, or simply stop using
           | them altogether.
        
             | closewith wrote:
             | If that's the case, then the war is already lost.
             | 
             | But happily, in the EU - the market I operate in - server-
             | side analytics is seen as an avenue towards compliance.
             | 
             | Obviously server-side GTM will be abused in the absence of
             | regulation, but that was also true of the existing
             | technologies. Strong and consistent enforcement can and is
             | bringing companies into compliance.
        
           | gorhill wrote:
           | > as the requests are not obfuscated in any way
           | 
           | How do you know for sure that the requests are "not
           | obfuscated in any way"?
        
             | closewith wrote:
             | Right now, because the requests are identical to the same
             | requests sent to Google Analytics but with a different
             | hostname. It's trivial to identify and block them, and
             | current ad blockers already do.
        
               | gorhill wrote:
               | > same requests sent to Google Analytics but with a
               | different hostname
               | 
               | There are instructions out there to also modify the path
               | of the requests[1]. Consider this paragraph in the
               | Summary section:
               | 
               | > Cynics could say that this is an improved way to
               | circumvent ad blockers. And they'd be right! This does
               | make it easier to circumvent ad blockers, as their
               | heuristics target not just the googletagmanager.com
               | domain but also the gtm.js file and the GTM-... container
               | ID.
               | 
               | * * *
               | 
               | [1] https://www.simoahava.com/analytics/custom-gtm-
               | loader-server...
        
               | closewith wrote:
               | You can do that, and you can also proxy encoded requests
               | which obfuscates all data, but you could also do that
               | with the previous version of Google Analytics via the
               | Measurement API.
               | 
               | In practice - in the EU, at least - I haven't seen any
               | examples of this, and it would be unlawful without
               | consent anyway, thanks to the GDPR.
               | 
               | It's also still fairly easy to classify requests (if you
               | have access to the unencrypted request in the browser)
               | based on heuristics. That's partly what the company I
               | work for does.
               | 
               | Separately, thank you for your contribution to the
               | Internet - it's as big and important as all the
               | behemoths, but unfortunately will never be rewarded in
               | the same way.
        
       | jeppester wrote:
       | It's been known for years - and hardly takes a lawyer to
       | understand - that sending user data to US-owned companies is
       | illegal according to GDPR. The US laws are simply incompatible.
       | 
       | Yet everyone (including government entities) have been dragging
       | their feet on and on hoping for some divine intervention to help
       | them continue using Google, Amazon and Microsoft. And those
       | companies have kept the hopes high by incorrectly claiming to be
       | GDPR compliant.
       | 
       | It's been embarrassing to witnes how little willingness there's
       | been shown towards protecting user data. Especially compared to
       | the amount of whining over how difficult it is to comply.
       | 
       | Hopefully these - very predictable - rulings will finally start
       | to get the ball rolling.
        
         | mminer237 wrote:
         | I think it's because over 40% of EU business use the cloud[1]
         | and 70% of those use AWS, Azure, or GCS.[2] Enforcing the law
         | consistently would devastate tons of EU businesses as you would
         | suddenly eliminate all of their tech infrastructure overnight
         | with no real alternatives.
         | 
         | [1]: https://ec.europa.eu/eurostat/statistics-
         | explained/index.php...
         | 
         | [2]: https://www.fiercetelecom.com/platforms/european-cloud-
         | provi...
        
           | jeppester wrote:
           | The businesses have had more than enough time to comply with
           | the law.
           | 
           | Now is the time to start enforcing the law enough to make
           | them actually care.
        
             | macinjosh wrote:
             | Clearly, even the EU doesn't care enough to enforce the law
             | or they would have already. They've literally had years.
             | 
             | What does it say about the credibility of the EU that it
             | passes laws it doesn't even enforce?
        
         | oliwarner wrote:
         | It _was legal_ under the  "Privacy Shield" until Schrems II,
         | and is still legal under Standard Contractual Clauses with
         | extra caveats for the US.
        
           | shakamone wrote:
           | This answer is accurate but no one seems to realise it. Under
           | standard contracts users waive their rights including privacy
           | rights under GDPR. Their are no user agreements anymore, only
           | contracts.
        
       | rlpb wrote:
       | "makes Google Analytics almost illegal" is an editorialized
       | (biased) title and that's not what the linked article says. Just
       | because use of a product is determined to contravene a country's
       | law doesn't mean that the product itself is made illegal; it can
       | be adapted to be compliant instead.
        
         | kergonath wrote:
         | The title is not great, but the Q&A is very explicit:
         | 
         | > All data controllers using Google Analytics in a similar way
         | to these organisations should now consider this use as unlawful
         | under the GDPR.
        
           | rlpb wrote:
           | > > _in a similar way to these organisations_
           | 
           | If you use axe in a similar way to an axe murderer then that
           | would make your use illegal. It wouldn't make axes "almost
           | illegal".
        
             | naniwaduni wrote:
             | There are any number of things you can have that are not
             | technically illegal to acquire or possess _per se_ , but
             | would almost certainly be illegal to use in any expected
             | capacity. I think it's reasonable to describe those as
             | "almost illegal". Google Analytics is, apparently, in that
             | category.
        
         | kmeisthax wrote:
         | The product cannot be adapted as the concern is specifically
         | that Google can be legally compelled to violate GDPR. Schrems
         | II is _very explicit_ that EU companies cannot send data to the
         | US for as long as the US CLOUD Act is on the books.
         | 
         | "Banning Google Analytics" actually downplays it. Even Google
         | _Fonts_ is actually illegal now; and it will continue to be
         | illegal until the US does the smart thing and copypastes GDPR
         | into local law.
        
           | cyral wrote:
           | So really every website, even HN, that doesn't shard all EU
           | data away in a separate EU datacenter (if they aren't already
           | based in the EU) is illegal?
        
             | jacquesm wrote:
             | No.
        
             | mminer237 wrote:
             | Correct. Also note that IP address are counted as PII, so
             | even sending an IP address (as required by any TCP/IP
             | request) to a US-located or US-controlled server is illegal
             | without getting consent beforehand.
        
               | tomkarho wrote:
               | I'm not sure that's how it works. Couple of things
               | (IANAL):
               | 
               | 1. I don't think ip address alone constitutes PII but
               | needs to be combined with other data to be applicable
               | 
               | 2. Even if it were, I would imagine it falls under
               | article 6 provisions where ip is required information to
               | fulfill a contract which in case of HN as an example
               | means delivering the web page to the browser
        
             | ricardobeat wrote:
             | Only if they are storing personal data (including IP
             | addresses).
        
             | kmeisthax wrote:
             | No. This part of the rules only applies to EU businesses.
             | If an EU citizen deals with a US business, the US business
             | still has to follow GDPR, but not the export rules. EU
             | businesses do have to follow said rules.
        
         | robertlagrant wrote:
         | I don't see there's a difference. Say they lowered the speed
         | limit, making driving at current top speed illegal. You could
         | say that speed's not illegal, it just needs modifying, but that
         | would seem a strange point to make.
        
           | bryanrasmussen wrote:
           | I think that's a strange way of arguing actually, you would
           | say the speed is illegal and the car and driver behavior just
           | needs modifying. Google analytics would by analogy be closer
           | to a car that can go a certain speed.
           | 
           | But the question is if the law says that any car that can go
           | that speed is no longer street legal, then it is a problem
           | because it is probably difficult to modify the car. Just as
           | there are structural issues about Google Analytics where GDPR
           | is concerned that makes altering it really difficult if not
           | impossible, and if you can't fix GA to make it legal it is de
           | facto illegal.
        
             | BlueTemplar wrote:
             | I guess the parallel works even better with *minimum*
             | rather than maximum speed limits ?
        
         | kmitz wrote:
         | Speaking of adapting the product, the article explicitely
         | states : "Is it possible to set the Google Analytics tool so
         | that personal data is not transferred outside the European
         | Union?"
         | 
         | "No."
         | 
         | So right now it is practically impossible to use Google
         | Analytics in a legal way in France.
        
           | jeppester wrote:
           | It's a very common misunderstanding (which is happily spread
           | by US cloud providers) that it matters _where_ the data is
           | stored.
           | 
           | What matters is that the data is stored by - and accessible
           | to - a company which submits to the US laws.
        
             | retcon wrote:
             | Equally it's a sorry indictment of our economic times that
             | the meaning of unlawful has been hammered into a
             | understanding that non prohibition is permission. This
             | aggressive and putative new use is refuted by every
             | founding principle of the common law in Anglo Saxon
             | countries and most of the western world. See the argument
             | of letter vs. spirit for a effect.
             | 
             | Ed. cleared up phrasing around new use, replaced meaning
             | with use for .. meaning.
        
             | 8ytecoder wrote:
             | I don't think it has been tested in court. It's akin to a
             | U.S. Court issuing a search warrant on a house in Paris.
        
       | eftychis wrote:
       | My applause to CNIL on the action.
       | 
       | I don't understand the "almost." The title is editorialized -- as
       | commented elsewhere. There is no almost. It is illegal the way
       | they act and store data. That nobody is going to come and place
       | you on handcuffs doesn't make something legal...
       | 
       | Mainly though this is old news -- https://iapp.org/news/a/cnil-
       | is-latest-authority-to-rule-goo... -- CNIL and the Austrian one
       | did so in the beginning of the year.
       | 
       | I would add a February 2022 tag on the post.
       | 
       | I hope the whole EU agency pool does the same and start applying
       | fines and every tooth they can.
        
       | agluszak wrote:
       | I hope more and more such laws will be passed in the EU. We need
       | stronger privacy protection against big tech corporations.
        
         | WaitWaitWha wrote:
         | >We need stronger privacy protection against big tech
         | corporations.
         | 
         | ... We need stronger privacy protection;
         | 
         | ... be it corporations, governments, or individuals.
        
           | joe-collins wrote:
           | We need stronger protections at all levels of social
           | organization. Every group has incentives to exploit each
           | other. The ever-evolving trick is to arrange the balance of
           | power to minimize each faction's capacity for overreach.
        
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