• by Wendy Davis  @wendyndavis, June 8, 2015

Verizon has no right to involve itself in a class-action privacy lawsuit against Turn, consumers who are suing the ad tech company say.

The battle between consumers and Turn stems from the ad company's use of Verizon's “supercookies” to track Verizon mobile users. In April, New York residents Anthony Henson and William Cintron sued Turn for allegedly violating their privacy by drawing on headers that Verizon injected into mobile traffic. Those “unique identifier headers,” called UIDHs, enable ad companies to compile profiles of users and serve them targeted ads. The headers are known as “supercookies,” or “zombie cookies,” because they allow ad companies to recreate cookies that users delete.

Turn recently asked U.S. District Court Judge Jeffrey White in the Northern District of California to send the lawsuit from the public court system to a private arbitration.

Turn argues that Verizon's contract with mobile users requires arbitration of all disputes. Turn itself wasn't a party to the contract between the users and Verizon.

In late May, Verizon filed a proposed friend-of-the-court brief backing Turn's request. Verizon argues in papers filed with U.S. District Court Judge Jeffrey White in the Northern District of California that the lawsuit will subject the company to “the burdens that it contracted to avoid, including the class procedures its subscribers agreed to forego, through the arbitration provision in its customer agreements.”

But Henson and Cintron argue that Verizon doesn't have any justification for getting involved in the battle about arbitration. “This case has nothing to do with the enforceability of the provision as between Verizon and its subscribers,” the consumers argue in papers filed on Friday.

They're asking White to reject all of Verizon's arguments, including that it has an interest in the interpretation of its arbitration agreements.

“The court and the parties are perfectly capable of reviewing Verizon’s contract to see whether Turn was named as a beneficiary of the arbitration clause (it was not), or whether Verizon considered Turn its 'agent' in their separate contract (it did not),” the consumers argue. “Indeed, as alleged in the complaint, Verizon openly distanced itself from Turn after Turn’s zombie cookie program became public.”

They add: “Verizon’s interest in assisting its business partners is irrelevant to whether Turn can hide behind an arbitration clause to which it is not a party.”

Consumers sued Turn soon after lawyer and computer scientist Jonathan Mayer published research showing how the company used the headers for its behavioral advertising program. Mayer reported in January that Turn uses Verizon's UIDH to collect data and send targeted ads to mobile users who delete their cookies.

At the time, Verizon allowed people to opt out of receiving targeted ads powered by its own ad programs but didn't let users avoid header injections. The company recently changed its policy and now allows subscribers to opt out of the header insertions.