WPP To Argue Safari Hack Didn't Harm Users

by Wendy Davis, Sep 17, 2012, 7:47 PM

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WPP's Media Innovation Group intends to argue that a potential class-action privacy lawsuit centering on the alleged Safari hack should be dismissed on the grounds that consumers weren't harmed, the company said in recent court papers.

The consumers who are suing "do not claim that they experienced any legally cognizable injury," attorneys for the ad agency said in a letter addressed to U.S. District Court Judge William Kuntz II in the Eastern District of New York.

The agency sent the letter in response to a potential class-action lawsuit filed in May by two consumers -- New York resident Michael Frohberg and California resident Andy Wu -- who allege that the ad agency unlawfully circumvented Safari's no-tracking settings. WPP's letter to Kuntz, filed with the court earlier this month, appears to mark the agency's first public statement about the allegations.

The lawsuit stems from a February report by Stanford grad student Jonathan Mayer, who published research stating that WPPs Media Innovation Group -- along with Google, PointRoll and Vibrant Media -- were circumventing Safari's privacy settings and then dropping tracking cookies. After allegedly doing so, all of the companies were able to serve ads to Web users based on their Internet activity. None of the companies were accused of linking cookie-based data to users' names or other personally identifiable information.

Google, Vibrant Media and PointRoll confirmed Mayer's report when it came out in February, and said they had stopped tracking Safari users or would soon do so. WPP has never confirmed the report. Google recently agreed to pay $22.5 million to settle Federal Trade Commission charges stemming from the workaround. The FTC hasn't yet indicated whether it plans to bring charges against any of the other companies that allegedly bypassed Safari's privacy settings.

But the FTC had more ammunition against Google than the other companies because the search giant signed a consent decree in 2011 banning it from misrepresenting its privacy practices. Google allegedly violated that decree by specifically instructing users that the Safari browser would block tracking cookies, and then dropping tracking cookies anyway.

The Media Innovation Group says in its letter that it will file a motion asking Kuntz to reject the consumers' theories for how they might have been harmed by the alleged tracking. One argument raised by the consumers is that the alleged tracking deprived them of the ability to profit from data about themselves. The agency says in its letter that this theory "is unsupported by any factual allegation establishing that they ever had that ability to begin with," the agency says.

The consumers also say that the alleged tracking caused them "emotional distress." But the ad agency counters in its letter to Kuntz that "the emotional distress the cookies allegedly caused Plaintiffs is not a legally cognizable harm because the information collected by the Cookies was neither personally identifying nor sensitive."

"Plaintiffs do not allege that they viewed, let alone were influenced by, any WPP or MIG representation regarding WPP or MIG's cookie-setting practices or the functionality of the Safari browser setting at issue," the agency says. "And, most importantly, they do not claim that they experienced any legally cognizable injury as a result of the cookies in question."

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