- A website cookie banner warns that non-essential cookies and personal data may be sent to U.S.-based third parties, creating exposure to U.S. government access with limited EU legal remedies.
- EU GDPR/ePrivacy rules require prior, informed opt-in for non-essential cookies, with “reject all” and withdrawal as easy as acceptance.
- Case law (Planet49 and a 2025 Frankfurt ruling) is tightening liability by requiring third-party vendors to independently verify consent before setting cookies.
- Organizations should upgrade consent-management, revocation handling, vendor controls, and EU–U.S. transfer safeguards as adequacy frameworks remain uncertain.
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Who, What & When
The primary disclosure comes from a website’s cookie consent banner stating that cookies and personal data—including end-device information—may be passed to third parties, some located in the United States. It warns of a risk of secret access by U.S. authorities and potential monitoring, possibly without legal remedy. The user is given the options: accept all, reject all (in which case only essential cookies are set), or granularly configure via advanced settings; revocation is possible via “Cookie Settings” linked in the footer.
Legal & Regulatory Context, How Much Risk?
Under EU law, notably the GDPR and ePrivacy Directive, consent for non-essential cookies must be “free, specific, informed, and unambiguous,” and must be obtained before placing such cookies. “Reject all” or equivalent must be as easy as “accept” and revocation must be provided on equal terms. Pre-ticked boxes or “cookie walls” can violate these rules.
Recent case law reinforces these standards. In Planet49 (2019), the ECJ ruled consensus under EU law invalidates pre-checked consent boxes and clarified that consent must include information on duration and third-party access. More recently, a Frankfurt court decision in 2025 held that third-party providers must implement mechanisms verifying consent before setting cookies; providers may be liable if they cannot verify consent independently.
On data transfers: The EU-U.S. Privacy Shield was invalidated in 2020 in Schrems II due to insufficient protection against U.S. surveillance. Although a new Trans-Atlantic Data Privacy Framework has been agreed in principle (2022), its adequacy status is under scrutiny and its scope may be challenged. Transfers of EU personal data to the U.S. carry legal risk unless under an adequate mechanism, such as Standard Contractual Clauses (SCCs), combined with risk assessments and supplementary protections.
Strategic Implications
Companies serving or accessible to EU users must ensure compliance through multiple levers:
- Ensure the consent mechanism prominently offers “reject all”, separate granular choices, free and reversible consent;
- Verify third-party providers have mechanisms (e.g., signed tokens) to ensure no data collection or cookies are stored prior to confirmed consent—even technically avoiding code path pre-placements.
- Ensure accessible revocation paths, transparent descriptions of cookie lifespan, purposes, parties involved, and what happens upon revocation.
- Review internal documentation, data processing agreements, and cross-border transfer safeguards—ensure SCCs and risk assessments are robust; monitor new developments in the EU-U.S. framework.
Open Questions & Risks
- Will the proposed Trans-Atlantic Data Privacy Framework be declared legally adequate by the European Court of Justice? If not, what is the fallback for transfer to U.S. third parties?
- How will regulatory bodies enforce liability for third-party providers when publishers fail to facilitate proper consent signals? Are there financial penalties or injunctive risks?
- What constitutes “secret access” by U.S. authorities under current U.S. surveillance laws (e.g. FISA, Executive Order) and can EU citizens obtain remedies through data protection authorities or courts?
- Will legal regimes in U.S. states or at the federal level push toward opt-in or stricter consent standards akin to EU norms, increasing compliance burden for cross-border business?
Supporting Notes
- The cookie banner in the primary article states cookies and personal data may be passed to third parties in the U.S. with the risk of “secret access by US authorities,” possibly without any legal remedy.
- Consent options provided include “Accept All,” “Reject All” (only essential cookies), and advanced settings for granular control; revocation via a footer link.
- According to empirical research, about 20.5% of websites make it harder for users to withdraw consent than to give it; 2.48% don’t allow revocation; over 57% fail to delete cookies after revocation; and many third-parties are not informed when consent is revoked.
- The ECJ’s Planet49 case (2019) held that pre-ticked checkboxes are non-compliant, and informed consent must state cookie duration and third-party access to cookies.
- A Frankfurt court ruling in 2025 held that third-party providers must verify affirmative consent before cookies are placed and may be subject to liability if they fail to do so, even if buried in vendor or technical layers.
- Companies’ obligations under GDPR include that consent must be specific, informed, freely given, with ability to revoke and withdraw consent as easily as granting it.
- The legal framework governing EU-U.S. data transfers—Safe Harbor has been invalidated; Privacy Shield invalidated in Schrems II (2020); while a new framework has been proposed in 2022, its legal adequacy is uncertain and under regulatory review.