• by Wendy Davis  @wendyndavis, February 12, 2018

Turn plans to argue that wireless users who are suing the ad company for allegedly violating their privacy didn't suffer any injury as a result of its practices.

The ad company will also argue that the lawsuit -- which centers on allegations that it used controversial "supercookies" for tracking -- should be thrown out on the grounds that consumers consented.

"Turn will seek dismissal on grounds that plaintiffs expressly consented to receiving tailored advertising from Verizon’s partners and to their collection of personal information in support of that activity," Turn says in papers filed Monday with U.S. District Court Judge Jeffrey White in the Northern District of California.

The battle dates to 2015, when Verizon customers Anthony Henson and William Centron alleged in a class-action complaint that their privacy was violated by Turn.

The ad tech company allegedly tracked Verizon wireless users via "headers" -- 50-character alphanumeric strings -- that Verizon injected into all unencrypted mobile traffic. Those headers enabled ad companies to compile profiles of users and serve them targeted ads. The headers, also known as “zombie” cookies, or "supercookies," allow ad companies to recreate cookies that users delete.

Turn recently settled Federal Trade Commission charges related to the headers.

Verizon used the headers for ad targeting between 2012 and 2015. The wireless carrier originally didn't let its subscribers opt out of the header insertions. But in 2015, faced with pressure from lawmakers, Verizon revised its policies in 2015 to allow opt-outs. The company later narrowed the program by saying it would only send the header to Verizon companies, including AOL.

When the tracking program first came to light, Verizon said that outside ad networks weren't likely to draw on the headers in order to compile profiles of Web users. But in January of 2015, researcher Jonathan Mayer reported that Turn was using Verizon's headers to collect data and send targeted ads to mobile users who delete their cookies.

Turn initially acknowledged that it used the headers for ad targeting and defended the practice, stating that the company uses the “most stable identifier” possible. Several days later, Turn said it had re-evaluated and would stop using Verizon's headers to target ads.

The ad company first fought the lawsuit by arguing that the matter belonged in arbitration because Verizon's contract with users called for arbitration of disputes. White agreed with Turn and ordered the case sent to an arbitrator, ruling that that questions raised by the matter "concern substantially interdependent and concerted conduct" between Turn and Verizon.

Last year, a three-judge panel of the 9th Circuit Court of Appeals reversed that decision. The appellate judges said Turn wasn't entitled to benefit from Verizon's arbitration agreement with customers.

Turn's new court papers mark the first time it has addressed the allegations since the appellate court returned the case to White. The company and lawyers for the consumers also say they will meet with a private mediator. If mediation is successful, the case could be resolved before trial.

In 2016, Verizon was fined $1.35 million by the Federal Communications Commission for allegedly violating the Communications Act's privacy provisions -- which require carriers to protect customers' "proprietary information" -- and a 2010 net neutrality rule requiring disclosure of broadband management practices. In addition to the fine, Verizon promised to obtain subscribers' opt-in consent before sharing tracking headers with a third party for targeted ad purposes.