Understanding Analytics For Privacy Litigation

The use of analytics tools can be problematic when it comes to privacy laws. As businesses across the board increasingly leverage analytics tools, attorneys face the urgent need to understand these highly sophisticated instruments. Lawyers must not only grasp the underlying mechanisms but also recognize the profound legal implications they carry.

These tools often intrude into the most private and sacred aspects of our lives, harvesting personal information with little regard for consent. As more of our daily activities unfold online, a deep understanding of the digital realm becomes crucial. Only with this knowledge can attorneys effectively address and litigate the egregious privacy violations that these tools can perpetrate.

What is analytics?

Analytics is the systematic exploration, interpretation, and communication of meaningful patterns in data. It involves the use of various tools, techniques, and methodologies to analyze large sets of data in order for users, typically businesses of all shapes and sizes to extract valuable insights, make informed decisions, and gain a deeper understanding of what is and isn’t working.

For businesses, analytics plays a crucial role in identifying trends, forecasting future outcomes, and defining strategy. The issue with analytics is that it requires businesses to share data, often personal, often private, and almost always confidential, with analytics companies. The sharing of user data, such as information about website visitors and their behavior, and interactions on the website and/or platform, is essential for businesses to get that valuable data and insights.

Implementing analytics tools with care is crucial for businesses to ensure compliance with privacy regulations, as mishandling or unauthorized collection of user data not only risks legal consequences but also endangers user privacy and trust.

Cookies, pixels, and url parameters

In order for analytics tools to work, they employ various mechanisms to gather valuable insights into user behavior, preferences, and interactions on websites. There are three fundamental mechanisms that these tools use:

1. Cookies
2. Pixels
3. URL parameters

Cookies

Cookies are like small messages a website sends to a user’s web browser. The web browser stores them, and later on, the website can read them again. These cookies serve various purposes, including helping websites recognize and remember returning users, track their activities, and store information about their preferences.

This data is crucial for businesses and marketers to understand their user behavior, improve website performance, and make informed decisions about content, design, and marketing strategies.Cookies can be first party or third party. First-party cookies are directly managed by the website users interact with, while third-party cookies are often embedded from external sources (such as analytics tools) and can track users across different sites.

First-party cookies are primarily used to enhance user experience by tracking authenticated sessions and remembering user preferences. Third-party cookies, on the other hand, are used for advertising or tracking purposes across multiple websites.In addition to first party and third party cookies, it is important to note that there are various types of cookies, each serving different purposes.

For example there are session cookies which maintain user session data, enabling easy navigation on websites without requiring constant reauthentication. Persistent cookies are another type of cookie that store user preferences and browsing history, allowing websites to personalize content and remember login information across sessions.

There are also tracking cookies, like those utilized by advertising networks, that monitor user behavior across websites to deliver targeted ads based on interests and browsing habits.There are many benefits for businesses who use analytics tools which use cookies, however there are legal risks, primarily around privacy and data protection regulations. Analytics tools, and the businesses using them alike are responsible for ensuring use in a way that is compliant with regulation.

Pixels

Another mechanism used by analytics tools are pixels (also referred to as web pixels). These are tiny, invisible graphic elements embedded in a website's code to collect data about user interactions within a webpage. When a user visits a page containing a pixel, their browser requests the image from the server, and this request can be logged by the analytics system, providing information about the user's visit.

Pixels have a number of different applications, such as tracking conversion, enabling retargeting, and more. Pixels are a crucial part of web analytics and digital marketing, providing insights into user behavior, campaign performance, and website effectiveness.

Pixels offer numerous benefits to businesses, enabling them to gather valuable insights into user behavior, optimize marketing strategies, and enhance customer experiences. However, businesses must exercise caution as the use of pixels, like cookies, could potentially infringe upon privacy laws. Cookies and pixels have the same use cases however the difference lies in the way they are implemented.

Cookies are stored on a user’s device, while pixels are small pieces of code embedded on a website. Because of this difference in the way these mechanisms collect information, they are able to provide different insights to businesses, and are therefore often used together.

URL Parameters

A URL, which stands for Uniform Resource Locator, is a reference or an address used to locate resources on the internet. It's a string of characters that provides a way to access a specific resource, such as a web page, a file, an image, or a program, on a network (usually the World Wide Web). URLs are fundamental to browsing the web and accessing resources across the internet.A typical URL consists of several components:

1. Protocol:  Common protocols include HTTP (Hypertext Transfer Protocol) and HTTPS (HTTP Secure) for web pages, FTP (File Transfer Protocol) for file downloads, and others like mailto: for email links.
2. Domain Name: This is the human-readable name of the server where the resource is located. It can be something like "example.com".
3. Path: This specifies the location of a specific resource on the server's file system. For web pages, this is often represented as the part of the URL that comes after the domain name, indicating the directory structure on the server.
4. Query Parameters: These are additional parameters appended to the URL that provide information to the server, often used in web applications to pass data between the client and the server.

So what do URL parameters do?

• Track user behavior and traffic sources. By appending unique identifiers or tracking codes to URLs, they can monitor how users are reaching certain websites - whether by google search, via paid ad, or from any other source
• Pass information such as user preferences, session IDs, or demographic data to web pages or applications. This enables businesses to tailor content and services based on individual user characteristics
• Data collection and analysis to gather valuable insights into user interactions, navigation patterns, and conversion rates by analyzing parameters passed in URLs

The main benefits to businesses leveraging URL parameters include insights into where website visitors, or visitors to specific pages on their website are coming from. This information allows businesses to make data driven decisions, refine marketing strategies and optimize campaigns for better performance.

However, like with cookies and pixels there are legal implications and risks associated with the use of URL parameters. Collecting and processing user data through URL parameters may raise privacy concerns, especially if sensitive information is involved. When using URL parameters Businesses must ensure they adhere to privacy regulations.

The critical role of attorneys in safeguarding privacy in the digital age

Attorneys play a pivotal role in safeguarding privacy rights and ensuring that entities comply with legal standards. By comprehending the mechanisms of data collection, legal professionals can more effectively advocate for their clients and hold violators accountable. The ability to navigate these technical aspects empowers lawyers to litigate complex privacy cases, seek justice for affected individuals, and push for reforms that enhance data protection.

As data collection practices become increasingly sophisticated, the potential for misuse and the consequent risks to individuals' privacy grow exponentially. The stakes are high, and the imperative for proficient litigation in this domain cannot be overstated. Addressing bad practices in data analytics not only protects individual privacy but also upholds the integrity of digital ecosystems.

Lawyers equipped with a deep understanding of these technologies are essential in the ongoing battle to protect personal information and prevent the exploitation of data. Through diligent litigation and advocacy, they can contribute significantly to creating a safer and more privacy-respecting digital landscape.

Join top attorneys already working with Darrow. Contact us.

‍

_________________________

This might interest you:

• Kids Online Safety Act: Strengths and Weaknesses
• Identifying Imprudent Investment Violations At Scale