WPP's Media Innovation Group has asked a federal judge to dismiss a privacy lawsuit stemming from the alleged Safari hack.
The agency says in court papers made public this week that the consumers who filed a potential class-action -- New York resident Michael Frohberg and California resident Andy Wu -- "do not, and cannot, allege that they suffered an injury." For that reason, Frohberg and Wu lack "standing" to proceed in court, WPP argues.
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.
The consumers say in court papers that they were harmed in several ways: the tracking caused them emotional distress, deprived them of the chance to sell data, and degraded their devices' performance.
But the Media Innovation Group argues that none of those claims can support the lawsuit. WPP argues that the consumers' devices couldn't have been affected by the cookies due to their small size; the agency says that a cookie on a MacBook Pro wouldn't take up more than one billionth of the computer's available space.
The agency also says that the emotional distress claims can't support the lawsuit, given that it wasn't accused of sensitive or personally identifiable information, such as names, addresses or financial account information. The Media Innovation Group adds that the consumers didn't flesh out any allegations that they were deprived of the chance to sell data themselves.
Frohberg and Wu are asking U.S. District Court Judge William F. Kuntz, II in Brooklyn to keep their lawsuit alive. They say that a ruling dismissing the case would leave them without any way to control how their computers are accessed by outside companies. "A ruling in defendants’ favor is a holding that third-party cookies, which are not necessary for the Internet to function, are inescapable -- that there is simply no antivirus-type, software-based protection that Internet users can put in place on their devices to stop outsiders they have never interacted with, or even heard of, from placing third-party computer code on their devices," they argue in court papers made public this week.
WPP isn't the only one facing litigation. Google, PointRoll and Vibrant Media also have been sued for allegedly circumventing Safari's settings.
Google recently paid $22.5 million to settle Federal Trade Commission charges stemming from the workaround, but didn't admit wrongdoing in the case. Google allegedly violated a 2011 consent decree banning the company from misrepresenting its privacy practices. The company allegedly did so by specifically instructing users that the Safari browser would block tracking cookies, and then dropped the cookies.