McDonald's, CBS, Mazda and Microsoft Sued For 'History Sniffing'
- by Wendy Davis @wendyndavis, January 3, 2011
In a complaint filed Tuesday with the U.S. District Court for the Southern District of New York, Sonal Bose alleges that McDonald's and the other companies "acted in concert with Interclick," to mine users' Web surfing history for marketing purposes. "Defendants circumvented the privacy and security controls of consumers who, like plaintiff, had configured their browsers to prevent third-party advertisers from monitoring their online activities," Bose alleges.
The lawsuit alleges that the companies violated the federal computer fraud law, wiretap law and other statutes. She is seeking class-action status. This lawsuit comes several weeks after Bose sued Interclick for allegedly using history-sniffing technology and Flash cookies to track her online activity.
History-sniffing technology exploits a vulnerability in browsers to discover the Web sites users previously visited. Researchers from the University of California, San Diego recently brought the technique to light when they published a paper explaining the technique and naming 46 Web sites where history-sniffing technology was being deployed. In at least some cases, ad company Interclick reportedly used the technology without the publishers' knowledge.
Bose's new lawsuit focuses on specific online ad campaigns that the marketers ran in 2010 -- including, according to the complaint, a McDonald's campaign related to the World Cup, a CBS SportsLine promotion of its online fantasy sports platform and a seven-month Microsoft campaign promoting the Windows Smartphone.
"Interclick engages in browser history sniffing on behalf of Defendants, to obtain information about entities with whom consumers have communicated and with whom Interclick and defendants have no affiliation," the lawsuit alleges. "All the consumer information Interclick acquired while executing an ad campaign for any one defendant was merged into Interclick's consumer profile database and subsequently used for behavioral targeting on behalf of all defendants."
Bose also says in her complaint that she believes that the defendants used Flash cookies for tracking purposes. Flash cookies are stored in a different place in the browser than HTTP cookies, and therefore, require additional effort to delete.
Measurement company Quantcast and widget maker Clearspring recently agreed to pay $2.4 million to settle a separate class-action lawsuit alleging that they violated people's online privacy by using Flash cookies for tracking. The plaintiffs in that case are represented by the same lawyers representing Bose, including Dallas-based attorney Joseph Malley and New York-based attorney Scott Kamber.
This doesn't bode well for the online ad industry. Yes, I am a little bias but what is the big deal? Online advertising pays for much of the content we consume on the web. People who are so very concerned about their privacy should stay off the net. Period.
The above "take it or lose it" perspective is exactly what many users of the internet are afraid of. We should not have to be concerned about our privacy while interacting with any medium. Advertising pays for traditional media availability and we have options there as to how much info WE decide to make available.
I think privacy is an illusion that most people would like to hang on to. But I also wonder where the "harm" is when this kind of data is collected and used for marketing?
Do I like ads "following" me around? No. If I click on those ads it's only to vote against them by doing so since that costs that advertiser with no return benefit.
Too much of advertising and marketing treats people as sheep. Something to be herded, penned, and sheared. I hope at some point maketing evolves and realizes that people are best treated as "partners" and given more consideration and respect. If they don't, the people may get organized at some point and demand it.
This smells a little like the "troll and sue" way of making a living - beats working. Whenever the phrase "seeking class-action status" appears, you can bet money on it that someone is looking to get rich on the backs of thousands of others who get pennies on the dollar. As they say (whoever "they" are), follow the money. My guess is that the trauma of the violation of privacy will be assuaged by numbers with lots of zeros. Considering that Bose has apparently done this before, it's not unlikely that she and her lawyers have more of these suits lined up.
Go ahead and put ads on on-line features. No problem. It does pay for content and its backbone. Advertising in and of itself is not the problem. Following me and tailoring messages is the problem. This is a privacy issue, period. Of course, this is a complicated issue of books and how dangerous invasion of privacy is. It's not important until something negative happens to you.
"My guess is that the trauma of the violation of privacy will be assuaged by numbers with lots of zeros." Too true however, the unfortunate reality is it's the only way you get corporate America's attention. Up until then, they could care less about our privacy. We need to draw the line somewhere and I believe the complaint in the report is a fair place to start.
My doctor thinks I'm to thin (I'm nearly the same weight I was in high school, as I remind him), yet because of where I live I often get ads for fat people who live here. That is at least local, apparently not yet personal, targeting and I seriously resent it.
If somebody was following me from store to store, I'd get a PPO or take some other action (call the police) but online, some folks in ad-marketing world feel that anything goes.......
I fear most people don't have a clue what today's technology "gives away" via the websites/browsers and mobile devices.