Do most retailers take the position that the use of third party behavioral advertising cookies is, or is not, the “sale” of personal information?

Bryan Cave Leighton Paisner

Retailers are divided about whether the use of third party behavioral advertising cookies do, or do not, constitute the sale of personal information.  One in four retailers (28%) utilize behavioral advertising cookies and take the position that they are not selling personal information.  While other retailers state that they do sell personal information, they list a variety of data fields that are being sold (e.g., geographic information, physical characteristics of the consumer, payment information, event information, etc.).  While one of the types of data identified as being sold is typically internet or network activity, most retailers do not disclose whether such sales originate from the retailer’s use of advertising cookies, or, instead, relate to another direct transfer of information from the retailer.  It may be probative that a number of retailers disclose that they sell personal information, provide a “do not sell” link, but do not change their use of advertising cookies based upon a consumer’s interaction with the do not sell mechanism.  That suggests that the retailer may not view the use of advertising cookies as a “sale” under the CCPA and that the retailer is, instead, stopping other transmissions of data.

For more information and resources about the CCPA visit

This article is part of a multi-part series published by BCLP to help companies understand and implement the General Data Protection Regulation, the California Consumer Privacy Act and other privacy statutes.  You can find more information on the CCPA in BCLP’s California Consumer Privacy Act Practical Guide, and more information about the GDPR in the American Bar Association’s The EU GDPR: Answers to the Most Frequently Asked Questions.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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