• by Wendy Davis  @wendyndavis, December 3, 2012

Arguing that consumers weren't injured "in any legally recognizable way," Vibrant Media has formally asked a federal judge to throw out a privacy lawsuit stemming from the so-called Safari hack.

Vibrant's request came in response to a potential class-action lawsuit filed in May by Web users Daniel Mazzone and Michelle Kusanto. They alleged that the company circumvented Safari's privacy settings, which block third-party tracking cookies by default.

Mazzone, a New York resident, and Kusanto, a resident of California, alleged in a complaint filed in the Eastern District of New York that they were injured by Vibrant in several ways. First, they say they were "shocked, humiliated and angered" by the alleged circumvention. Second, Mazzone and Kusanto contend that their data is valuable, and that Vibrant Media deprived them of the ability to profit from it. Third, the two Web users assert that the hacking impaired the functionality of their devices.

But Vibrant counters in its court papers that none of those alleged harms warrant further proceedings. "Plaintiffs here seek windfall class damages without alleging any facts showing that either plaintiff suffered an actual or statutory injury," Vibrant argues in a motion, asking U.S. District Court Judge Nicholas Garaufis to dismiss the lawsuit before either side exchanges evidence through the discovery process.

Vibrant adds in its papers that Mazzone and Kusanto don't allege that the company obtained any "sensitive" or confidential information about them -- which Vibrant says is necessary to sustain a claim for invasion of privacy.

A different federal judge, Deborah Batts in New York, ruled last year that a Web user could proceed with a privacy lawsuit against Interclick, which allegedly used "history-sniffing" techniques to discover information about her browsing activity. Batts rejected Interclick's argument that the lawsuit should be dismissed in its entirety for lack of economic injury.

But Vibrant argues that Garaufis shouldn't follow Batts' ruling. "The Interclick decision is an outlier," Vibrant argues, adding that it is inconsistent with "the overwhelming majority of cases."

The litigation stems from a report by Stanford grad student Jonathan Mayer that Vibrant -- along with Google, PointRoll and the WPP's Media Innovation Group -- used a workaround to bypass the Safari browser's settings by setting tracking cookies. All of the companies were then able to serve ads to Web users based on their Internet activity.

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 commented. None of the companies were accused of connecting the cookie-based data they allegedly obtained to users' names or other personally identifiable information.

Mazzone and Kusanto filed court papers arguing against dismissal. They say that companies like Vibrant should face legal repercussions for revising users' software without their consent. "If Vibrant is allowed to alter plaintiffs' Safari software with impunity, what other software on plaintiffs' devices is [Vibrant] legally allowed to retool without permission," they ask.

Vibrant's motion and replies by Mazzone and Kusanto were made public last week.

PointRoll, WPP and Google also are facing potential class-action lawsuits over the matter. Google agreed to pay $22.5 million to settle Federal Trade Commission charges about the workaround. But the FTC had extra ammunition against Google because the search giant instructed users that the Safari browser blocked tracking cookies. By making that statement, and then circumventing Safari's privacy settings, the search giant allegedly violated a 2011 consent decree prohibiting the company from misrepresenting its privacy practices.