Verizon is backing ad company Turn's request that a privacy lawsuit involving “supercookies” should be sent to arbitration. If that request is granted, the details of the dispute -- including Verizon's arrangements with Turn -- likely would be kept confidential.
Verizon wasn't itself named in the lawsuit, which was filed last month by New York residents Anthony Henson and William Cintron. But the telecom says in a proposed friend-of-the-court brief that it will have to participate in the case because Turn's defenses will “depend on the interpretation of Verizon’s contracts and disclosures.”
The dispute grows out of reports that Turn tracked Verizon users' Web activity by drawing on headers that the telecom injects into mobile traffic. The controversial “unique identifier headers,” called UIDHs, enable ad companies to compile profiles of users and serve them targeted ads. The UIDHs also are called “supercookies,” or “zombie cookies,” because they allow ad companies to recreate cookies that users delete.
Turn argues in papers filed earlier this month that Verizon's contract with mobile users requires arbitration of all disputes.
But it's not clear that Turn can enforce that arbitration clause, because the company wasn't a party to the contract between the users and Verizon, according to Internet law expert Venkat Balasubramani.
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 the wireless carrier, which isn't itself facing suit, could have another motive for wanting the case to be heard by an arbitrator and not a judge: Arbitrations tend to be confidential, while court cases generally are open to the public.
Turn already has disclosed in its legal papers that even though Verizon periodically changed users' UIDHs -- which the telecom characterized as a privacy feature -- it provided Turn with enough information to connect new headers to the old ones.
“Verizon worked with Turn to design a solution that enabled Turn to handle advertising campaigns lasting more than one UIDH rotation, in part to account for advertising campaigns lasting longer than one UIDH rotation,” Turn said in papers filed earlier this month. “Because Verizon changes the UIDH for a particular device on a regular basis, an essential part of the integration of the Verizon UIDH into Turn’s system was to associate any new UIDH with the preceding UIDH when the UIDH rotated.”
Verizon's use of supercookies has spurred criticism by privacy advocates and an investigation by regulators.
The lawsuit against Turn came soon after lawyer and computer scientist Jonathan Mayer published research showing how Turn leveraged 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. He wrote that Verizon's UIDH allows Turn to recreate deleted cookies -- small text files that store the kind of information used for ad targeting.
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 insertions. Mayer's report resulted in questions by lawmakers, which seemed to prod Verizon into changing its policy. As of April, the company allows subscribers to opt out of the header insertions.