When people say “cookies,” they’re often using shorthand for a much broader set of technologies: code, scripts, images, or files that collect, transmit, tag, or store information about a user, device, or online activity. This tracking may occur across websites, mobile apps, email, and other online interactions. In practice, this includes cookies, pixels or beacons placed on webpages or in emails, session replay tools that record user activity such as mouse movements, clicks, and typing, as well as fingerprinting techniques that use browser and device configurations to track activity.
If a compliance program is “cookie-only,” it can miss the tools that most often generate scrutiny, such as session replay implementations, search term handling, and other non-cookie or server-to-server flows that are harder to spot without purposeful testing. In today’s compliance environment, that may be a costly mistake.
Regulation is increasing across multiple fronts, including state privacy laws (both comprehensive and sector-specific), federal frameworks such as FTC Act enforcement and sectoral regimes like HIPAA and GLBA, as well as the revival of common law theories, and older statutes applied to newer technologies. The number of state consumer privacy laws is increasing as 21 states have enacted consumer privacy laws, with more very likely to come soon.
Beyond regulators, litigation risk is accelerating. Wiretap laws may permit statutory damages up to $10,000 per violation under ECPA, providing a substantial reward for an increasingly interested plaintiff’s bar. In addition, the plaintiff’s bar is increasingly using automated tools to search for potential offenders. Companies are receiving demand letters with shocking price tags and public settlement ranges are commonly reported between $2 million and $18 million. These cases are starting to get juries. With this potential reward and the tools being used by the plaintiff’s bar, organizations can no longer rely on staying hidden.
The simplest message I can impart is this: it’s more than “cookies” and compliance is more complicated than you think. Effective risk mitigation in this arena requires a combination of legal and technical expertise. The right question isn't whether your company uses these tools, it's whether your compliance program has kept pace with them.
AssociateJames “Jim” M. Yanney is an associate attorney in Houston’s Intellectual Property group. James' practice is centered at the intersection of intellectual property, litigation, and technology, bringing a rare combination ...