Specific Media Asks Court To Dismiss Flash-Cookie Tracking Suit

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The ad network Specific Media says that a lawsuit accusing it of using Flash cookies to circumvent consumers' privacy settings is nothing more than an attempt by "opportunistic plaintiffs' lawyers to shake down a law-abiding company."

"The court should not countenance such a lawsuit and should dismiss the complaint," the company says in a motion asking the U.S. District Court in the Central District of California to dismiss a potential class-action privacy lawsuit brought last year by a group of consumers.

The consumers alleged that Specific Media violated a host of laws, including a federal computer statute, by failing to provide adequate notice about its online data collection techniques, including Flash cookies. They also asserted that Specific Media used Flash cookies to recreate HTTP tracking cookies that users had shed. Flash cookies are stored in a different location in browsers than HTTP cookies, and therefore, considered harder to delete.

Specific Media denies using Flash cookies at all. The company also argues that the lawsuit should be dismissed because the consumers did not assert in the complaint that they were harmed economically by the alleged privacy violation.

"Because of the apparent widespread use of Flash cookies and the existence of a 'different,' less well-known process for deleting Flash cookies, plaintiffs' counsel saw a potential cash cow," the company argues.

Many other Web companies sued for privacy violations, including Google and Facebook, also argue that pending cases against them should be dismissed on the theory that the consumers did not allege they suffered any tangible harm. At least one judge, U.S. District Court Judge Otis Wright II in the Central District of California, recently threw out a consumer's privacy-related lawsuit against online data broker Spokeo on the theory that the Web user did not allege economic injury. But the user in that case filed a new complaint alleging that he has not been able to find work as a result of inaccurate information on Spokeo.

This week, the consumers who are suing Specific Media filed papers opposing the company's motion to dismiss the case. They argue that information about themselves is in itself valuable, and point to relatively new businesses -- like personal.com and the UK site i-allow.com -- that say they offer ways for users to receive compensation for their data.

Flash cookies were originally designed to remember users' preferences for Flash-based applications, like online video players, but some companies also use such cookies to store the same type of information that is normally found on HTTP cookies. Flash cookies historically persist longer than HTTP cookies because users who delete HTTP cookies don't necessarily also delete Flash cookies. But Adobe recently said its upcoming Flash Player 10.3 will make it easier for people to delete Flash cookies.

A report about Flash cookies published in 2009 by researchers at the University of California, Berkeley and other schools outlined how Flash can be used to circumvent consumers' settings. After the report was published, some Federal Trade Commission officials said they were concerned about the use of Flash for tracking purposes.

That report led to a flurry of privacy lawsuits, including the one against Specific Media. Last year, Web measurement company Quantcast and widget maker Clearspring agreed to pay $2.4 million to settle two class-actions alleging that they violated people's online privacy by using Flash cookies for tracking.

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