The New York Attorney General’s office (OAG), on July 15, 2024, released guidance related to tracking technologies, signalling its intent to oversee online cookie practices even in the absence of a comprehensive state privacy law.  Companies that use cookies and other tracking technologies should be aware of this new publication as they make decisions about privacy on their websites.

The OAG’s guidance identifies privacy shortcomings that commonly occur when companies deploy cookies. According to the OAG’s guidance, companies risk claims of unfair and deceptive practices when they implement miscategorized or misconfigured tracking technologies. These may include:

1. Miscategorising tags and cookies to indicate they are essential when they are not.

2. Misconfiguring cookie consent tools so that they fail to honour consumer’s choices about cookie tracking.

3. Providing consumers with cookie setting options that lead consumers to believe they enjoy protections nationwide, when in fact they are provided only in certain states.

4. Using “hardcoded” tags that evade privacy tools that may signal consumers’ choices about cookies and tracking.

5. Implementing non-cookie tracking technologies that cannot be blocked by privacy tools.

The guidance also recommends steps organizations can take to avoid enforcement actions. These include:

1. Implementing detailed policies, procedures and processes, including:

• Authorizing an individual to manage an organization’s tracking technologies.
• Investigating the nature of what each cookie collects, how it is used and with what parties it is shared.
• Configuring and categorizing new and changed tags and tools properly.
• Testing tags and tools regularly to ensure they honour consumer choices.

2. Ensuring that statements about tracking technology are clear and accurate.

3. Avoiding language about cookies that may lead consumers to choose less privacy-protective settings.

If you are a company doing business in New York, Achieved Compliance can help you meet the requirements of the New York OAG and avoid enforcement actions. We can help you review and update your cookie policies, procedures and tools to ensure compliance with the OAG’s recommendations. We can work with you to manage tracking technologies, investigate each cookie’s data collection and regularly test to be sure that your systems honour consumers’ choices.