PointRoll Sued For Circumventing Privacy Settings

by Wendy Davis, Feb 29, 2012, 6:03 PM

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Texas resident Lourdes Villegas has sued ad company PointRoll and search giant Google for allegedly circumventing the no-tracking settings on the Safari browser.

While Google has been hit with several other lawsuits for allegedly tracking Safari users, Villegas appears to be the first Web user to sue Gannett's PointRoll for the potential privacy violations.

The lawsuit, filed in U.S. District Court in San Jose, Calif., accuses the companies of violating federal computer fraud laws and wiretap laws, as well as California state laws. Villegas is seeking class-action status.

The litigation centers on a report published two weeks ago by researcher Jonathan Mayer, who found that Google, PointRoll, WPP's Media Innovation Group and Vibrant Media were dropping cookies on Safari users despite the fact that the browser blocks third-party cookies.

Google, Vibrant Media and PointRoll confirmed Mayer's report, and said they had stopped tracking Safari users or would soon do so. WPP hasn't yet commented.

Google acknowledged that it used a workaround to Safari's cookie-blocking in order to allow users to post that they liked an ad via the +1 button. Once the workaround was in place, however, Google was able to track Safari users as they surfed the Web. Google said it hadn't anticipated that result and that it was in the process of deleting the cookies it had dropped. The company also said that it didn't collect any personally identifiable information.

PointRoll said it conducted a "limited test" in order to determine the effectiveness of mobile ads. "The test did not involve the collection, retention or resale of any specific user information. The limited test ended on February 8, 2012, and we made the decision not to employ this practice further," PointRoll CEO Rob Gatto said in a blog post.

Mayer's findings spurred consumer groups to file a complaint against Google with the Federal Trade Commission. Several lawmakers also expressed concern over the circumventions.

Whether Villegas will be able to proceed in court isn't clear, given that Web users in other privacy cases have met with mixed results. A federal judge in New York recently denied a motion by ad company Interclick to dismiss a privacy lawsuit at a preliminary stage. But different federal judges have thrown out other privacy lawsuits -- including a case against Facebook -- because consumers weren't able to allege that they were harmed financially.

In an attempt to show that she suffered economic injury, Villegas alleges that deleting all traces of tracking cookies will prove costly. "Like a toxic oil spill in the Gulf of Mexico," she argues, "embedded 'toxic cookies' now require a toxic cookie cleanup."

A PointRoll spokesperson said the company "believes the claims set forth in the complaint are meritless and intends to vigorously defend against them."

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