Plausible Analytics Isn't GDPR Compliant(blog.paranoidpenguin.net) |
Plausible Analytics Isn't GDPR Compliant(blog.paranoidpenguin.net) |
Is Plausible actually tracking users? I mean actually allowing you to get a user's history (or IPaddr history) on your website across multiple days? (or a subset of this?)
If it does, then yes, it is not compliant without the user agreeing. If it doesn't, then no.
The blog post conflates general data points with PII. The IP address is considered PII.
While other info can be used for fingerprinting, it’s ok to use in some capacity as long as you don’t.
For background, I’ve done GDPR implantation a in the past, an a privacy advocate in that sense, and spent more time with lawyers in this subject then I’d care to admit.
(Pardon brevity/typos, on phone with unreliable connection)
There was a ruling in Breyer vs. Germany that IP addresses can be considered PII – in certain circumstances.
The case was brought against an ISP, and the court ruled that the company had enough correlating data at its disposal to make an IP address de facto PII for any of its customers. The court limited its ruling, saying that with just an IP address alone, the protections associated with the directive wouldn’t apply.
The problem is that you can't tell the two apart and decide when it's safe handle the IP.
If you store IP adresses in your customer database, the information is that a person with that IP is one of your customers. This information is considered PII if it's possible to use the IP to identify the person the information is about, e.g. using a government database of everyone's IP address. If the data never reaches someone with access to such a database, it's not PII.
(This is a somewhat pendantic distinction, but it matters legally. Data protection law doesn't care about which identifiers are being used, but about the data associated with it and whether it tells you something about a specific identifiable person.)
Their docs suggest as much https://docs.plausible.io/excluding/
"Most web analytics tools do this by excluding certain IP addresses from being counted. However, we do not store the visitors’ IP addresses in our database for privacy reasons"
In fact, the solution suggested above (only using a truncated IP address) would still require you to acquire and process the IP address and thus be subject to GDPR.
IP address is the only piece of data that we touch that is considered PII under some regulations including GDPR.
The IP address is fully anonymized by hashing it together with a daily changing salt. Old salts are deleted to as to prevent re-identification: https://github.com/plausible/analytics/blob/master/lib/plaus...
According to GDPR Recital 26, anonymized data does not fall within the GDPR at all because data is no longer considered “personal data” following anonymization:
> The principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable.
I can't presume what Plausible does (have not read their docs in awhile) but they have commented here to provide more specific clarification that address IP usage (TLDR: what they do is fine and compliant)
That said, the GDPR is deranged and might define things differently. Blocking the EU is safer.
Of course there are research exceptions that you could drive a truck through, and logging is still valid, so none of this matters.
I'd like to know your opinion on this. Do I still need to use a consent banner if I use these services?
Thanks.
"‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person"
So, no, I do not think it is deterministic.
It is more complicated for IPv6 but enough of the internet is IPv4 that you can't ignore that case.
Storing a "user has opted out from tracking cookies" binary flag in a cookie is not the same as storing an unique identifier in a cookie.
b.) They don't store IP addresses. Information they gather are not stored in a way to build user profiles or do fingerprinting.
It doesn't look like the articles author took a look a the Plausible documentation or source code.
If you've downvoted that comment you have done the community a disservice.
This would mean any server-side analytics (looking at access logs, which include IP address and user-agent) cannot be used for analytics or tracking, since there is no way for a user to give/deny consent to a page that already has logged information on them.
for example for Nginx something like:
log_format logfmt '$remote_country - [$time_local] ' '"$request" $status $body_bytes_sent ' '"$http_referer" "$http_generic_user_agent" "$gzip_ratio"';
That would assume access to a GeoIP database, but it would be helpful.
Those who have the intent to comply and are at least complying in spirit are not at any legal risk. Attitude matters.
And the spirit is obvious: get consent if you enable a third party to unique identify a user in reality. I.e. if it's private data or if you enable correlation across websites.
It's correlating and sharing you need consent for. Don't worry about a server log.
It is not about what you make possible. It's about what you do. Technically any sysadmin can access some information they should not. It's unavoidable.
But that's quite a far way from commercially exploiting databases of people without their consent.
Honestly they should just ban the sale of personal information. Most internet marketing vendors are not actually in the business of selling personal data.
Now the good ones suffer because of the bad ones. And the bad ones either pretend they have consent or find a way to get it.
I have two browser plugins: "I don't care about cookies" and "Never Consent", I'm not sure what Never Consent doesn't technically, but the other one just hides the DOM element with the cookie thingy.
That means that I never see the "consent" banners so I can't click the "Okay" buttons. I should test to see how many sites just assumes OK to cookies because I didn't click "No".
On a positive note I do see more an more sites making it just as easy to say no to tracking as saying yes. Though sites are better at remembering a yes to tracking, compared to a no.
From their website [1]: By using it, you explicitly allow websites to do whatever they want with cookies they set on your computer (which they mostly do anyway, whether you allow them or not).
Which is fine for me, I use it with Cookie Autodelete, but if you don't, you should be aware of that.
ePD introduced the idea of the cookie consent banners we see today.
While it was enacted in 2002, ePD didn't really start to come into broad legal force in many member states until ~2010ish (EU Directives are not like federal laws; instead they're implemented & enforced by individual member states separately).
GDPR's focus on prior consent makes consent banners in their popular format largely useless, but when GDPR came along, the intent was that PD should have been replaced by the accompanying EU ePrivacy Regulation (ePR)[1] to clarify this. ePR has been delayed, so we're in this ambiguous place.
[0] https://en.wikipedia.org/wiki/Privacy_and_Electronic_Communi...
This is as much about what information is available AND what you do with it. Browsers send information whether you ask/use it or not.
At a high-level (and not necessarily speaking about Plausible here cos I don't know the inner workings), it is ok for a service to use personal information (looking at the IP address here) if in a form that is not traceable back to a user, and not used for tracking individuals.
In this case the use of CNAME is fine, its just to stop the blunt blocking of JS etc that happens as a reaction. Its worth noting that GDPR does permit data collection for essential services and (there is some dispute/debate on this) basic site analytics can be considered essential services.
In regards to Plausible, they are commenting directly here and seem to be address all these concerns.
IMHO the blog post author sees a problem at the surface level but is not an expert - but for those of us more familiar with the legal framework behind this, the exceptions, and the distinctions of how information is used (and supporters of GDPR), what Plausible doing is good and compliant.
(To be clear; I'm not affiliated with them - am just supportive of GDPR friendly alternatives like this one)
Article 5(3) of that directive states that
"Member States shall ensure that the use of electronic communications networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia about the purposes of the processing, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user."
In other words, unless the cookies are strictly necessary to providing you with the service then you must provide users information about what the cookies are used for, and you must offer an opt-out.
(It's also worth pointing out the generality of this Directive, too: It doesn't only apply to cookies, but also to things like localStorage).
The ePrivacy Directive is, as its name suggests, a Directive which is addressed to member states of the European Union which have all written it in to domestic law.
In the UK, for example, it was implemented as PECR[2].
[0] The ePrivacy Directive does reference the old legislation that the GDPR replaces, so you should consider the reference in the ePD to Directive 95/46/EC as a reference to the GDPR. This means the standard of "consent" is the GDPR's standard now.
[1] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A...
[2] https://ico.org.uk/for-organisations/guide-to-pecr/what-are-...
"Cookies are an important tool that can give businesses a great deal of insight into their users’ online activity. Despite their importance, the regulations governing cookies are split between the GDPR and the ePrivacy Directive." https://gdpr.eu/cookies/
Consent is required by GDPR but not for the technical circumstance that you store a cookie but that you use it for profiling. Some lawyers argue that basic web performance is legitimate interest especially in e-commerce, others don’t risk it and ask for consent (which is strictly opt in).
Applies off site as well -- pretty much every cold email tracking software, like Yesware, is in violation of GDPR, since you didn't get the recipient's consent to track their opens and clicks.
[1] https://ico.org.uk/for-organisations/guide-to-data-protectio...
Ironically, my IPv6 prefix can change several times a day...
A similar idea would be to have built-in $remote_addr_hash8, $remote_addr_hash16 variables which hash IPv4 and IPv6 addresses down to 8-bit or 16-bit numbers.
There are hacky ways you can do some forms of anonymization already:
https://www.supertechcrew.com/anonymizing-logs-nginx-apache/
It was good for privacy, not because it's enforced or not and not because sites are showing cookie consents, but because it made the public more aware of centralization/privacy issues on the internet and companies a bit more careful with data processing. This law also resulted in many "privacy-friendly" alternatives for various services, which in the end led to a healthier market and improved data decentralization.
I'm working on that market and find that interpretation is quite difficult as soon as you have multiple actors around the table. Example: because recommendations from DPAs are not exactly the same, then you may have different requirements of the same company from different country legal department within the UE.
I don't know, because neither "reversibility" nor "determinism" are precisely defined (this is not criticism of your comment in any way).
Here's one semi-reasonable interpretation of the two words for which reversibility would not imply determinism: Imagine a "process" (I, too, am being imprecise and calling this a "process" instead of a function) that takes as input an integer between 1 and 6 inclusive. Its output for the input n is a dice roll with a dice that is biased in favor of n, but is otherwise fair. Now, this is not a deterministic process, but if you are allowed to feed it the same input multiple times, you can probablistically reverse it.
Anyway, sorry for the tangent – your original point was the important one.
But yes, something I need to be aware of.
If small companies are called upon compliance with such vehemence, the big ones who know so much of us should be brought up, at least 100x times more.
Yes, and it's worth noting how few data points one needs to identify an individual.
>If small companies are called upon compliance with such vehemence, the big ones who know so much of us should be brought up, at least 100x times more.
Absolutely, no argument from me here.
It is in Europe, despite some regional rulings (Germany?). It is not considered PII in the USA.
https://leginfo.legislature.ca.gov/faces/billTextClient.xhtm...
(o) (1) “Personal information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household. Personal information includes, but is not limited to, the following: (A) Identifiers such as a real name, alias, postal address, unique personal identifier, online identifier Internet Protocol address, email address, account name, social security number, driver’s license number, passport number, or other similar identifiers.
“[I]f a business collects the IP addresses of visitors to its websites but does not link the IP address to any particular consumer or household, and could not reasonably link the IP address with a particular consumer or household, then the IP address would not be ‘personal information.”
Source: https://iapp.org/news/a/are-ip-addresses-personal-informatio...
And I think we're missing the main point. How can it be reversed if there are hundreds of possibilites.
"The processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest."
It's also mentioned in Article 21 describing the right to object to processing using legitimate/public interest:
"Where personal data are processed for direct marketing purposes, the data subject shall have the right to object at any time… etc."
The ICO has some useful guidance on when it is an appropriate basis: https://ico.org.uk/for-organisations/guide-to-data-protectio...
"However, when the attorney general revised its draft regulations for a second time March 11, the guidance was struck without explanation."
hash(daily_salt + website_domain + ip_address + user_agent)
This generates a random string of letters and numbers that is used to calculate unique visitor numbers for the day. Old salts are deleted to avoid the possibility of linking visitor information from one day to the next.
Full details are here: https://plausible.io/data-policy
The rule in effect is- a person knows the IP their ISP granted them on the dates they were granted. They ask- do you have any records of me from these IPs on these dates.
Assuming Plausible keeps the record of salt by date, the answer is yes, we have records of you, because they can retrieve the salt, recreate the ID, and locate the records.
If they do not retain the salt, in contrast, they cannot respond to individual requests for their records and that would also imply they are not able to do day over day returning visitor calculations.