How should organisations handle EU to US data transfers after Schrems II when analytics tools place cookies on websites?

Why analytics cookies are part of the transfer analysis after Schrems II

After Schrems II, the key question is not whether a cookie is “technical” or “marketing”, but whether the analytics service can receive or access personal data from an EU context. If the tool or its operator is in the US, the transfer analysis should treat cookie identifiers, event data, and any linked browsing signals as cross-border data flows that may trigger Article 46 safeguards and a transfer risk review.

The practical consequence is that organisations need to map the full browser-to-vendor path, including script loading, third-party requests, consent state, and downstream access by the provider. That matters because analytics often looks lightweight at the website layer while still creating a transfer relationship that regulators will assess on the substance of the processing, not the label attached to the cookie.

When the analytics platform can combine cookie identifiers with other site telemetry or user-level records, the transfer assessment becomes more sensitive. The more directly a cookie can be tied to a person, device, or persistent profile, the harder it is to treat the flow as low-risk or purely aggregate.

What organisations should review before continuing the transfer

Start with data mapping. Identify which cookies are set, what data they contain, where the script is hosted, where the vendor processes the data, and whether any of that data is accessible from the US. That review should also cover whether the vendor acts only as a processor, or whether it receives the data for its own purposes, because the legal and technical control points differ.

Next, check whether the transfer can be limited by design. Useful controls include restricting what the cookie contains, shortening retention, preventing cross-site tracking, removing direct identifiers, and ensuring the vendor does not receive unnecessary raw event data. If the same analytics outcome can be achieved with a lower-exposure configuration, that is usually the better option.

Finally, validate the safeguard package. Article 46 transfer mechanisms are only part of the answer; organisations also need supplementary technical and organisational measures where the destination law or access conditions create risk. In practice, that means looking at encryption, pseudonymisation, vendor access boundaries, and whether the importer can actually honour the promised safeguards.

How to decide whether the cookie setup is acceptable

The right decision is usually conditional, not absolute. If the analytics function is non-essential, high risk, or opaque about downstream access, the simplest answer may be to stop or replace it. If the function is important, the implementation should be redesigned so the transfer is narrower, better documented, and supported by a transfer mechanism that matches the actual exposure.

Organisations should also distinguish between consent for cookies and legality of international transfers. Cookie consent may be required for local ePrivacy or tracking rules, but it does not by itself solve the GDPR transfer problem. A site can be properly consented and still be non-compliant if the US transfer lacks an adequate legal basis and supplementary protections.

Where there is uncertainty, the safest course is to assess the vendor as part of the website’s data governance, not as a back-end technical utility. Analytics often sits in a blind spot because it is embedded in the front end, but the transfer consequences are real when personal data leaves the EU or becomes accessible from abroad.

Risk and Threat Considerations

Analytics cookies can create hidden exposure because they are often deployed broadly, retained for long periods, and copied across multiple pages and properties. The main risk is not the cookie itself, but the downstream access it enables, especially where the vendor can reconstruct browsing behaviour or link activity to a persistent profile.

Failure mechanism: A website loads a third-party analytics script that sets identifiers and sends telemetry to a US service, creating a transfer path that may be invisible to business owners and difficult to constrain once embedded across the site.

Impact: The organisation may end up with an unlawful or poorly protected transfer, unnecessary profiling exposure, and a harder remediation path because the analytics dependency is embedded in the site’s frontend and consent flow.

Practitioner Guidance

What to verify: Confirm the exact data elements sent by the cookie, the vendor’s processing location, and whether the service can access raw identifiers or only aggregated metrics. If you cannot describe the data path in one sentence, you do not yet have enough assurance to rely on the transfer.

Decision rule: If the analytics tool receives persistent identifiers or user-level telemetry from an EU site, treat it as a transfer problem first and a web analytics problem second. If the same reporting value can be achieved with less personal data, prefer that design.

Practitioner takeaway: For Schrems II, the question is not whether analytics feels harmless, but whether the deployed setup creates a cross-border access path that your legal mechanism and technical safeguards can genuinely defend.

Related resources from NHI Mgmt Group

• How should organisations handle EU US personal data transfers after Privacy Shield was invalidated?
• How should organisations update EU-US data transfer controls after the Schrems II ruling?
• How should organisations assess cross-border data transfers after Schrems II?
• How should organisations handle international data transfers when tracking tools rely on US-based infrastructure?