Google, PointRoll Seek Dismissal Of Safari-Hack Lawsuit

by Wendy Davis, Jan 30, 2013, 5:40 PM

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Google and PointRoll are asking a federal judge to dismiss a lawsuit alleging that it bypassed Safari's privacy settings in order to set cookies on users' computers.

Google, which paid $22.5 million to settle FTC charges about the alleged circumvention, contends in new court papers that the Web users who are suing the company can't prove they were harmed. Therefore, Google argues, the case should be thrown out of court.

"Google’s alleged placement of cookies on plaintiffs’ browsers did not cause them any cognizable injury," the company says in court papers filed in U.S. District Court in Delaware. "To the extent that the presence of Google’s cookies affected plaintiffs at all, it was only in that they might have seen different Google ads than the ones they otherwise would have seen."

The litigation stems from a report published last year by Stanford grad student Jonathan Mayer, who said WPP's Media Innovation Group -- along with Google, PointRoll and Vibrant Media -- were circumventing Safari's no-tracking settings.

As a result, 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, adding that they had stopped tracking Safari users or would soon do so. WPP has never confirmed the report. All four of the companies are now facing potential class-action lawsuits. Vibrant Media and WPP recently asked federal judges in Brooklyn to dismiss the cases.

The FTC charged Google -- but not the other companies -- with misleading consumers. Google had specifically instructed users that Safari blocked tracking cookies. That statement enabled the FTC to accuse Google of violating a 2011 consent decree that bans the company from misrepresenting its privacy practices.

Google has always said that it didn't intend to track users. Instead, the company said it bypassed Safari's settings in order to allow people to like ads with the +1 button. But once the workaround was in place, Google's DoubleClick was able to track people in order to target ads to them, based on their Web-surfing history.

The company reiterates that stance in its latest court filing, which says the team that designed the workaround "did not anticipate or intend" that it would cause browsers to accept the DoubleClick cookie. PointRoll likewise argues that the Web users who are suing weren't harmed by the alleged circumvention. The company also says that unlike Google, it did not tell users that Safari would block cookies. "Plaintiffs do not and cannot allege that PointRoll violated any express undertaking or commitment in its privacy policy," PointRoll argues.

The company adds that it was under no obligation to respect Safari's no-tracking settings. "Plaintiffs simply assume, without any basis, that an Apple internal default setting has the force of law," PointRoll says.

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