User Seeks To Revive Flash Cookie Suit Against Specific Media
In an attempt to revive a potential class-action lawsuit against ad network Specific Media, a Web user has filed new court papers arguing that he suffered economic injury by the company's alleged use of Flash cookies to collect information.
"Plaintiffs were harmed by the capture and exploitation of their personal information in that they surrendered much more than they bargained for when they visited Web sites on which defendant displayed ads," Web user Stefen Kaufman argues in an amended complaint filed this week against Specific Media.
He argues that Specific Media violated a federal computer fraud law by using Flash cookies -- which are relatively harder to delete than HTTP cookies. Specific Media denies that it has ever used Flash cookies to collect or store information used for behavioral targeting, or serving ads to users based on sites they visited in the past.
Last month, U.S. District Court Judge George Wu in the Central District of California threw out the lawsuit on the grounds that the consumers did not adequately allege they suffered at least $5,000 in damages -- the minimum required to sue for computer fraud.
Wu gave the Web users until May 17 to file new papers that detailed allegations of economic injury. The original lawsuit was filed on behalf of seven Web users, but the latest filing only names one consumer -- Kaufman.
In the amended complaint, Kaufman alleges that consumer information is "a valuable asset" that was taken without permission. The scarcer the information, he argues, "the more valuable it is to the advertisers that pay Web publishers to collect it through legitimate means."
Kaufman says the price tag of the data can be determined by "detailed, discoverable value in the infomediary market." He also argues that Flash cookies impaired their computers' performance.
"Defendant's actions caused plaintiffs and class members to suffer diminutions in processing and connectivity performance because not only were their actions undisclosed and unexpected, their methods of information collection were more resource-intensive than HTTP cookie-based or other routinely employed and reasonably expected collection methods," he alleges.
It's not yet clear whether the new complaint will address Wu's concerns.
But Specific Media's general counsel, Drew Bordages, argues that new court papers still don't specify how any individual Web user lost money as a result of the alleged use of Flash cookies. "It's essentially the same facts that they alleged originally, just repackaged in a different way," he says.
Internet law expert Venkat Balasubramani of Seattle characterizes the consumers' arguments about their economic injury as "formulaic," but says the judge might still allow the lawsuit to move forward. If so, the Web users and Specific Media would proceed to gather evidence from each other in discovery.
Much of the controversy surrounding Flash cookies dates to a 2009 report by researchers at the University of California, Berkeley and other schools outlining how Flash can circumvent consumers' settings. Flash cookies historically persisted longer than HTTP cookies because Flash cookies were stored in a different place in the browser, and therefore were harder to delete. (Adobe recently revamped some settings to make it easier for people to delete Flash cookies.)
After the report was published, some Federal Trade Commission officials said they were concerned about the use of Flash for tracking purposes. Consumers also filed several lawsuits over the cookies.
Two other companies that were sued -- Web measurement company Quantcast and widget maker Clearspring -- agreed to pay $2.4 million to settle class-actions; those cases were brought by the same attorney representing Kaufman against Specific Media.