KISSmetrics, Hulu Hit With Privacy Suit

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Analytics company KISSmetrics and Web video site Hulu.com have been hit with another privacy lawsuit over their alleged use of "supercookies" to track people.

The lawsuit is the third against KISSmetrics since July, when it emerged that the company was using ETag technology to track users even when they deleted their cookies. Hulu also is facing a separate lawsuit for allegedly working with KISSmetrics, as are two dozen other Web companies.

This latest action, filed on behalf of four Texas residents -- Susan Couch, Cristina Garza, Concepcion Jauregui, and Silviana Moncada -- alleges that KISSmetrics and Hulu violated the federal wiretap law, computer fraud law, various state laws and a privacy law that applies specifically to video rental records.

"Defendants' activities caused both economic harm and non-economic harm," the consumers allege in papers filed on Wednesday in U.S. District Court for the Central District of California. "The personal information defendants compiled and misappropriated included sensitive information, such as users' video viewing choices revealing personal interests, his/her sexual preference, political views, and even more specific information like health conditions."

KISSmetrics used ETags to store information in users' browser caches. When those users erased their cookies, the company was able to recreate them with the information in the ETags. Until last month, when KISSmetrics revised its practices, the only way for users to avoid its ETag tracking was by clearing their browser caches between each Web site visit or installing the AdBlock Plus extension.

ETags are a new type of hard-to-disable tracking technology known as "supercookies." Flash cookies, which are stored in a different place in the browser than HTTP cookies, are an older form of supercookies -- although possibly less effective for tracking users against their wishes these days, given that Adobe recently made them easier to delete. Both technologies can be used to respawn HTTP cookies that are deleted by users who are trying to avoid tracking.

Ashkan Soltani, one of the privacy researchers who first noticed KISSmetrics' ETags, said that they could enable companies to compile profiles of users based on their activity across the Web. That's because KISSmetrics assigned persistent numbers to Web users across every site they visited, making it possible for Web sites to trade data with each other about the same users.

KISSmetrics CEO Hiten Shah said in a blog post that his company did not aggregate data about users that way. It's not yet known whether any of the publisher sites that worked with KISSmetrics did so.

The most recent case against KISSmetrics and Hulu was brought by Dallas attorney Joseph Malley, who previously brought privacy lawsuits against Netflix, Facebook and defunct behavioral targeting company NebuAd.

Last month, a Stanford researcher published a report stating that Microsoft also used ETag technology for tracking. The company disabled the technology shortly after the report came out.

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