Cellphone companies are now using “perma-cookies” to track mobile browsing despite consumer’s do not track” requests, which permits advertisers to identify users for targeted behavioral advertising and has concerning implications for users’ privacy.

OlenderFeldman <a rel="nofollow" target="_blank" title="Privacy Lawyer Aaron Messing Interviewed By Fox News" href="http://www team collaboration app.myfoxny.com/story/27170920/your-browsing-is-being-tracked” target=”_blank” rel=”nofollow”>was interviewed by Fox News regarding how cellphone companies are using various methods to track their users’ mobile browsing habits. While most people think their mobile browsing activity is anonymous, this activity can be tracked to their phone and, thus to them by both their phone companies and, increasingly, but the websites that they view. This can have concerning implications when the user of a phone is a minor, or when the subject of the browsing is personal health information or other sensitive information.

OF was also asked about the mandatory arbitration provisions and other waivers that are hidden in the fine print of many cellphone contracts. In our modern electronic society, many users simply hit “I accept” without reading the contracts that they are agreeing to,  not realizing that they may be giving away important rights.

 See the full interview here.

Directive 2002/58 on Privacy and Electronic Communications, otherwise known as E-Privacy Directive, is an European Union directive on data protection and privacy in the digital age, which has been recently updated to require informed consent for non-essential cookies.

Many of our clients transact business internationally and have websites that target European users. The European Union’s E-Privacy Directive (the “Directive”), implemented in May 2012, requires that websites obtain informed consent from users prior to storing cookies on a device. The Financial Times recently reported that the Information Commissioner’s Office (ICO) is beginning to crack down on non-compliant companies. If a website is found to be non-compliant, the ICO can issue fines of up to £500,000 ($807,450). Cookies are small data files sent from a website and stored in a user’s web browser while a user is browsing a website, and are commonly used for remembering preferences and tracking user activity. Although the Directive exempts some cookies from the informed consent requirement, most commonly found cookies, such as third-party analytics, personalization and other persistent cookies are not exempt. Generally speaking, if your website uses technology to track users, you need their consent to do so.

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There are a few basic steps to take in order to comply with the Directive. First, audit your tracking technologies to determine what cookies, if any, your website places. You may be surprised at what is going on behind the scenes. Categorize your cookies into groups (i.e., necessary service/function cookies, analytical cookies, advertising cookies, etc.) so that you can better explain the types of cookies used on your site. Next, update your privacy policy to ensure that it accurately reflects what is actually going on under the hood of your website. Once your privacy policy is up-to-date and accurate, you should consider how you want to inform your users of your cookie policies. Simply relying that users might have read your privacy policy is no longer considered sufficient. Instead, many websites are implementing banners, headers, footers or splash screens that are designed to ensure informed consent. According to the Financial Times, the European Union has been aggressively enforcing compliance with the Directive and recently increased the size of its enforcement team by 60 percent to investigate infringements. All companies that use cookies on their websites and are subject to European Union jurisdiction should ensure that their site is updated to comply with the Directive.