> To not be indistinguishable from "strictly necessary" there would have to be a case where the "functional cookie" actually required consent, right?

The case is when you don’t use that feature.

> how would you solicit that consent other than some kind of cookie banner?

Using the feature that requires the cookie is considered consent, same as using the website is considered consent to set cookies actually necessary for the entire website to function. For example, if you click “save settings”, that’s consent to save those settings, there’s no need for a “but am I allowed to save settings?” popup.

You might be tempted to dive into the potential grey area here, and sure, one exists, but (a) that’s why the laws go into 1,000 times more detail than this HN comment, (b) most of it’s not in the grey area, and (c) even in the worst case, making 100% sure is as easy as a checkbox before the button that activates the feature, there’s never a requirement for a blanket “can we do whatever we want” before even displaying the homepage.

> It refers to statistics, but sometimes you do want that, e.g. so the site can tell you how long it took you to do something compared to the average user, or provide those analytics to you. And the fact that this is ambiguous is an obvious problem -- if you get access to the data they collect is that "analytics" or "functional"?

The GDPR calls it “statistics”, but in this context defines the word to mean analytics, not statistics shown to users. If it’s shown to users then it’s either strictly necessary or functional.

> In the face of an ambiguity, most corporate bureaucrats are going to take the risk-averse option, which is to ask for consent in case it turns out to be adjudicated as required ex post facto. The result is quite predictable. If you pass a poorly drafted law, businesses have a general preference for doing something stupid/wasteful/annoying over something that could get them sued or fined.

Businesses are generally risk averse, yes, but don’t mistake knowing a force at play for knowing them all. The “cookie consent banner” was invented and evangelized not by the laws they’re commonly believed to have sprung from but by the IAB, an ad industry consortium counting Google, Facebook, and many others as members. The same organization that organized efforts to prevent third party cookie blocking, and that tried to block the GDPR entirely. The banner norms they created did not even comply with the law until changes a few years ago, the EU just took its sweet time on enforcement.

The average small business, of course, is not in on some grand scheme, but this is where your risk aversion comes in: if all the big players are doing something, and everybody around you is doing it, and you Google it and the first 20 results all say to do it, then the risk averse move is of course to just do it and move on. After all, trusting your own judgement is scary, what if you get sued or fined?