Interclick Seeks Dismissal Of History-Sniffing Lawsuit

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Behavioral targeting network Interclick argues that a lawsuit by New York resident Sonal Bose alleging that the company deployed "history-sniffing" technology should be dismissed as too speculative to warrant further proceedings.

In papers filed this week in federal court in Manhattan, Interclick argues that Bose merely guesses that the company "may have engaged in Web advertising practices that Plaintiff was not aware of in order to determine what advertisements to display."

What's more, Interclick argues, Bose doesn't assert that the tracking caused her any economic loss. "The only result of the practices plaintiff alleges would have been that if, for example, she had visited travel-related Web sites, then she allegedly would have been more likely to be shown a travel-related advertisement."

Bose sued Interclick in December, shortly after researchers from the University of California, San Diego published a paper about history-sniffing techniques. Web companies engage in history sniffing by exploiting a vulnerability in browsers to discover the Web sites users previously visited.

The researchers named 46 Web sites where history-sniffing technology was being deployed. In at least some cases, the ad company Interclick reportedly used the technology without the publishers' knowledge.

Bose said in her complaint that she believes she was subject to history-sniffing by Interclick, based on reports about Interclick's activities, its role as "a major online ad network," and the existence on her computer of an Interclick.com Flash cookie. Interclick counters that Bose doesn't allege any solid facts to show that it tracked her history. In addition, Interclick argues, it isn't liable under either the wiretap law or computer fraud law for the alleged tracking.

The computer fraud law requires that Web users suffer at least $5,000 worth of damage in order to sue. But, Interclick asserts, Bose doesn't suggest "that Interclick's alleged use of tracking technology caused a single cent of economic damage, let alone sufficient damage to reach the $5,000 statutory threshold."

Interclick also says in its court papers that history-sniffing does not meet the definition of wiretapping. Wiretap laws prohibit companies from intercepting communications. Interclick says that history-sniffing doesn't intercept any transmissions because "the alleged technology only reviewed whether plaintiff had previously visited websites."

In January, Bose also sued four other companies -- McDonald's, CBS, Mazda and Microsoft -- who allegedly "acted in concert with Interclick," to mine users' Web surfing history for marketing purposes. Those companies also filed papers this week asking for the lawsuit to be dismissed. They argue that Bose's complaint against them is even more speculative than her allegations against Interclick. Bose "does not allege any fact connecting her to any of the four defendants, much less all of them," they argue.

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