Flash Cookie Lawsuit
With all of the attention flash cookies have received, particularly with the Wall Street Journal study (see “The Collection and Sale of Your Web Surfing Habits” posted August 3, 2010) it comes as no surprise that a class action lawsuit was filed in California on Augst 18 against Specific Media, Inc. (http://www.specificmedia.com/)
The lawsuit cites violations of the Computer Fraud and Abuse Act, violations of California computer, privacy, unfair competition, and legal remedies law as well as unjust enrichment (in this case, making money though unlawful means) and trespass to personal property.
The claims are based on their being no consumer knowledge or choice in accepting the flash cookies, there was intentional computer harm (loss of data in trying to remove the cookies and poor computer performance after the cookies were downloaded), knowingly accessing a computer without the owner’s knowledge, unjust enrichment in monetizing the acquiredcomputer users’ data which was acqired by unlawful means and trespassing on computers.
It is interesting to note that the suit specifically excludes those Specific Media affiliated corporations and websites that do provide users with adequate notice and awareness of the information that would be collected.
Specific Media, like many flash cookie company websites, does provide information about its cookies, how and why they are used, as well links to sites that allow the user may opt out of the Specifc Media ookie collection or control how long the cookies persist.
This suit may be the beginning of the end for the use of flash cookies, or at least using the cookies without the user’s knowledge and consent, much in the way the actions against NebuAd (in the U.S.) and Phorm (in the U.K.) put an end to another means of clickstream data collection.
The rise of the flash cookie business even after the the dramatic backlash against NebuAd and Phorm demonstrates that there is a strong motivation for targeted advertising as a means to support free (as in not paid for by the user) content on the Web. Even if flash cookies are sued out of existence it is likely another technology will rise in its place.
There are numerous browser plug-ins and websites that provide users a means to control the user of the flash cookies. What is missing is the knoweldge and consent of the user. It will be interesting to see how the Internet advertising respond to the challenge of providing targeted advertising with clear disclsoure and user control — even if such disclosure and user control may harm targeted advertising (See previous post, “The Effects of Regulation on Online Advertising” August 22).
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Hi Simon, Flash cookies are so difficult to get a handle on I had been wondering when this might come to a head. I’m wondering if the issue will be rendered moot by the EFF Panopticlick Experiment where they pretty effectively show that effective individualized tracking is possible without the use of cookies.
Thanks Fred. The Panopticlick Experiment (sounds like a steam punk device), in which the Electronic Freedom Foundation demonstrated a means to determine individual browsers statistically, based on browser configurations (browser fingerprints) certainly highlights that there is more than one way to track individual users across the Internet.
What I found particularly interesting was that the more tools loaded into the browser, such as tools to increase privacy, the more unique the browser fingerprint.
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