U.S. Website Compliance For Cookies And Tracking Technologies: Two Complementary Workflows

This article explains the two distinct but complementary compliance workflows U.S. websites should implement for cookies and tracking technologies. The first workflow addresses state consumer privacy laws, following the example of the California Consumer Privacy Act as amended (CCPA/CPRA), which gives consumers the right to opt out of the “sale” and “sharing” of personal information, including disclosures via third party analytics and advertising technologies. The second workflow addresses website wiretapping claims under statutes such as the California Invasion of Privacy Act (CIPA), where consent is a principal defense; here, a properly designed cookie consent banner and delayed loading of nonessential trackers mitigate litigation risk. In short, if a site deploys third party analytics or advertising tools, it should (1) provide a website footer level opt-out link and honor browser based Global Privacy Control (GPC) signals and (2) implement a prior consent banner that prevents nonessential tracking from firing until the user consents.

Legal Landscape and Scope

U.S. federal law does not impose a comprehensive cookie rule, but a growing number of states (now approaching twenty) have enacted broad consumer privacy statutes. California's framework is the most developed for web tracking. Under the CCPA/CPRA framework, a “sale” occurs when a business discloses personal information to a third party for monetary or other valuable consideration. The law also covers “sharing” for cross context behavioral advertising, even without money changing hands. In practice, third party analytics and advertising cookies and pixels can qualify as sale or sharing when they disclose identifiers such as IP address, user ID, device information, or browsing events to independent adtech and analytics partners for measurement, targeting, or similar purposes.

Regulators have treated common third-party web tracking arrangements as sales or sharing. Enforcement has centered on whether businesses provide users with a clear opt-out mechanism and whether they honor automated signals communicating a user's opt-out preference. California rules require honoring the GPC signal where a site sells or shares personal information. Other states have adopted similar opt-out regimes and, in several cases, recognition of universal opt-out mechanisms that function like GPC.The wiretapping risk sits on a separate legal track. Plaintiffs have applied legacy interception statutes to modern web tracking, arguing that session replay scripts, chat widgets, and third-party pixels “intercept” the contents of users' communications with a website. Consent is a well-recognized defense in these cases. Courts scrutinize when and how consent was obtained and whether nonessential tracking occurred before consent.

Workflow A: State Privacy Opt-Out Program for Sale/Sharing via Cookies

A privacy law opt-out program begins with the recognition that cookie and pixel disclosures can be regulated “sales” or “sharing.” If the site transmits personal information to analytics or advertising partners, the site must offer an opt out of sale and sharing to covered state residents. It should apply on a browser or device basis without requiring account creation.

The practical prerequisite for this workflow is a granular data mapping of scripts and cookies. Each tag, software development kit (SDK), or pixel must be classified by purpose and recipient. The business must determine which trackers are strictly necessary for the service and which are analytics or advertising. Where possible, businesses may reduce sale/sharing exposure by using first-party cookies, auditing, and removing tracking technologies that are no longer needed, and disabling features or functions that entail cross context behavioral advertising. 

California requires that websites display a conspicuous link that enables consumers to opt out of sale and sharing at any time. The link text must include either “Do Not Sell or Share My Personal Information” or “Your Privacy Choices,” and it should appear in the website footer on every page, in settings, and on the developer page within mobile apps. The destination should present a simple interface that allows users to disable targeted advertising and analytics without unnecessary friction. The mechanism must not require users to navigate multiple layers, create an account, or disclose more data than necessary to effectuate the choice.

California also requires recognition of the Global Privacy Control browser signal where a site sells or shares personal information. Upon detecting a valid GPC signal, the site must treat the user as having opted out, at least for the browser or device sending the signal, and the site must suppress sale/sharing trackers accordingly. The effect should be immediate and durable for the session, with a reasonable persistence mechanism where feasible. Several other states require recognition of universal opt-out mechanisms that function similarly; while technical details and effective dates vary, building to GPC compliance today positions a business for broader compliance. 

Beyond signal handling, the opt-out link and GPC must produce real technical effects. After an opt out, the site should prevent the setting of new advertising and sale-implicated analytics cookies and block outbound transmissions of personal information to third-party adtech and analytics providers. Where vendors offer opt-out application programming interfaces (APIs), those should be invoked as part of the opt-out workflow.

Notably, having a cookie banner or a cookie preference center is not a compliance measure required under U.S. state privacy laws. But if these compliance measures are offered, U.S. privacy laws require that they be implemented in specific ways. 

Workflow B: Wiretapping Statutes and Consent Banners

Wiretapping statutes such as CIPA are not comprehensive privacy laws; they prohibit the interception of communications without all-party consent. Plaintiffs have argued that session replay scripts, chat features, and certain third-party pixels receive “pen register,” “trap and trace” information, or “contents” of communications contemporaneously with user interaction with a site, triggering wiretap liability. Consent obtained after the fact does not cure a prior interception, and implied consent is contested. For that reason, many businesses have adopted prior-consent cookie banners as a litigation risk control, distinct from building compliance.

A defensible cookie banner provides clear notice of the categories of tracking and the purposes for which data is collected and disclosed. It offers a meaningful choice and records consent. Most importantly, it prevents nonessential tracking from loading until the user affirmatively accepts. Courts assessing consent examine clarity, timing, and whether the user could proceed without agreeing to nonessential tracking. A design that allows access to the site with only strictly necessary cookies, while gating analytics and advertising behind an “accept” control, aligns better with consent principles than a design that fires all trackers immediately.

Technical enforcement is the core of this workflow. Tag management and consent management platforms must be configured so that no analytics, advertising, session replay, or third-party chat scripts execute until consent is captured. If the user declines or ignores the banner, those scripts must remain blocked. Consent records should be time-stamped, tied to a pseudonymous identifier, and retained for a defined period to support litigation defenses.

Operationalizing Controls: Categorization, Gating, Signals, and Recordkeeping

A unified privacy governance program harmonizes the two workflows without creating user friction. The starting point is consistent categorization: strictly necessary cookies and scripts that enable core functionality; functional or performance tools that are not essential; analytics; and advertising. Only the strictly necessary category should execute by default. Analytics and advertising should load only after the user consents for wiretap risk purposes and must be suppressible via opt out for privacy law purposes. Where a user has opted out via the footer link or GPC, analytics and advertising pixels that would constitute a sale or sharing must remain blocked regardless of any prior consent. Website privacy policy should describe the categorization scheme, consent workflow, GPC handling, and opt-out mechanics in plain language. 

Special Considerations and Emerging Issues

First party analytics that do not disclose personal information to third parties reduce privacy law and wiretap risk. Authenticated website pages can raise the stakes because identifiers link to accounts, possibly increasing the sensitivity of disclosures. Sensitive personal information receives heightened protection under several state laws, and targeted advertising involving minors can trigger additional obligations.

Design patterns matter. Interfaces that nudge users toward accepting all cookies without a genuine option to refuse can be challenged as dark patterns. A clear reject path, equal prominence for choices, and straightforward explanations of consequences of user choices make both compliance workflows more defensible. 

Enforcement and litigation trends continue to evolve. State attorneys general have scrutinized adtech deployments and GPC response, and plaintiffs continue to test new theories under wiretapping statutes. Building to the stricter end of current expectations (GPC honoring, robust opt out, and correct design for collection of prior consent for nonessential trackers) positions organizations for change with minimal rework.

Conclusion

Websites that use third party analytics or advertising technologies should review and consider implementing two complementary workflows. First, to comply with state privacy statutes such as the CCPA/CPRA, they must provide an opt-out link in the website footer and must honor browser based GPC signals by suppressing sale/sharing trackers. Second, to mitigate wiretapping claims under statutes like CIPA, they should deploy a cookie consent banner or cookie preference center that blocks nonessential tracking until the user accepts, and that maintains the block if the user declines. The two workflows serve different legal aims and should be operationalized in tandem. The practical path forward is to classify all trackers, gate analytics and advertising by default, enforce GPC and other universal opt-out mechanisms, and record consent and opt-out states in a way that demonstrably suppresses disclosures. While state-by-state requirements continue to evolve, designing to these standards today provides a durable compliance posture and a credible defense against both regulatory enforcement and private litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.