Consumers have no
grounds to revive their class-action lawsuit centering on the alleged circumvention of their no-tracking settings, Google and other companies argue in new court papers.
Media and WPP's Media Innovation Group are asking the 3rd Circuit Court of Appeals to uphold U.S. District Court Judge Sue Robinson's order dismissing the consumers' lawsuit, which stemmed from a
workaround to Safari's no-tracking default settings.
Robinson ruled that the consumers didn't have “standing” to proceed in court, because they weren't harmed by any cookies
that were set. She also said that even if the companies tracked users with cookies, doing so didn't violate the federal wiretap law -- which applies when companies intercept the “content”
of a communication. She ruled that any interceptions were of URLs, or Web site addresses, and not “content.”
The consumers are asking the 3rd Circuit to reverse Robinson's
ruling. They say they experienced a “concrete injury the moment the defendants intruded upon their protected right to be left alone.”
Google, Vibrant and WPP disagree.
“Google did not collect or use any personal information when placing DoubleClick ID cookies,” the company argues in papers filed on Monday. The company adds that those cookies don't
collect personal information. “They are a standard feature of the modern Internet used for a host of legitimate purposes,” Google says. “The only result of the alleged cookie
placement at issue in this case was that more relevant ads might have been displayed in plaintiffs’ browsers than the random ads that would otherwise have been shown.”
Media and WPP make similar arguments. “Despite their best efforts to paint routine commercial behavior in a nefarious light, [the consumers] alleged no facts showing that their legal rights were
violated, that they suffered any economic loss, or that they were otherwise affected in any way by the alleged cookie-setting,” the companies argue.
The litigation was sparked by a
2012 report by Stanford grad student Jonathan Mayer, who said the four companies were circumventing Safari's no-tracking settings. As a result, the companies were able to set tracking cookies and
serve ads to Web users based on their Internet activity.
Google, Vibrant Media and PointRoll confirmed Mayer's report, adding that they had stopped tracking Safari users or would soon do
so. WPP has never confirmed the report. None of the companies were accused of linking cookie-based data to users' names or other personally identifiable information.
PointRoll recently settled the allegations by promising to delete any cookies it collected from Safari
users. The company also said it will issue a public statement that its data-collection from Safari users was “not consistent with best industry practices.”
Google agreed to a $22.5
million settlement with the Federal Trade Commission for circumventing Safari users' privacy settings. Last November, the company also agreed to pay an additional $17 million to 36 states and the
District of Columbia.