Playing Regulatory Catch-up? – The Relevance of EDPB Guidelines 2/2023 on the Technical Scope of Art. 5(3) of the ePrivacy Directive

Abstract

Abstract Recently, the European Data Protection Board (the EDPB) released new guidelines on the technical scope of Art. 5(3) of the ePrivacy Directive (the ePD) and held its consultation procedure. These guidelines aim to clarify the scope and details of Art. 5(3), specifically what ‘the storing of information, or to gain access to information stored in the terminal equipment of a subscriber or user’ means on a technical level. This opinion describes the circumstances under which such information may be stored or accessed. In this contribution I pose the hypothesis that the broadening of the published guidelines is at least in part necessary to prevent the ePD from becoming irrelevant, if only non-covered techniques are to be used. In this opinion, I will first discuss the background of the ePD, provide context for the guidelines and their structure, and then follow and comment on the respective parts of the analysed phrase alongside the analysis of the EDPB. In the end, I will conclude and check if all the latest developments are likely to be caught by the new interpretation according to the technical guidelines, and what this could mean for legal practice.