Turn Asks Judge To Dismiss Suit Over 'Zombie' Cookies

Ad company Turn is seeking dismissal of a lawsuit accusing it of using a controversial tracking technology to recreate cookies that users deleted.

The company -- which previously settled Federal Trade Commission charges related to its tracking technology -- argues in new court papers that its alleged practices were actually "mundane."

"Notwithstanding the ominous tones of plaintiffs’ rhetoric, and their wild-eyed accusations of 'surreptitious monitoring' and 'mass surveillance,' the actual conduct that plaintiffs allege ... could not be more mundane," the ad company writes in papers filed Wednesday with U.S. District Court Judge Jeffrey White in the Northern District of California. "Plaintiffs are suing Turn for placing a 'cookie' on their mobile devices."

The company's new papers come more than three years after it was sued for allegedly tracking Verizon Wireless users via "headers" -- 50-character alphanumeric strings -- that the carrier previously injected into all unencrypted mobile traffic. Those headers became known as "supercookies" or "zombie cookies," because they enabled ad companies like Turn to recreate cookies that users delete.

Verizon originally said 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 drawing on Verizon's headers to collect data and send targeted ads to mobile users who delete their cookies.

Turn, now owned by Amobee, initially acknowledged Mayer's report, and defended use of the tracking headers. Several days later, the company changed its position and stopped using the tracking headers. 

In April 2015, New York residents and Verizon customers Anthony Henson and William Cintron sued Turn for allegedly violating a New York consumer protection law prohibiting deceptive practices. White initially sent the lawsuit to arbitration, but the 9th Circuit Court of Appeals recently returned the case to court.

Turn is now asking White to dismiss the suit outright, arguing that its alleged use of "zombie" cookies didn't violate any laws. Specifically, the company says that recreating deleted cookies is not deceptive.

"Turn’s systems were able to place cookies on plaintiffs’ devices for the simple reason that plaintiffs never chose to block cookies from their devices; and Turn was able to synchronize its cookies with plaintiffs’ mobile devices because Verizon embedded an identifier in their web traffic, where anyone could see it," the company writes. "Nothing out of the ordinary happened here."

Turn also argues that Henson and Cintron shouldn't be allowed to proceed because they didn't suffer any injury as a result of the alleged tracking and ad-targeting.

"Plaintiffs utterly fail to explain how they suffered any actual injury merely from receiving targeted advertisements -- particularly given that the alternative would not have been to surf the Internet ad-free, but instead would have been to receive less tailored, more random ads," Turn argues. "Plaintiffs were not forced to buy the products advertised, or even to look at the ads, for that matter."

Henson and Cintron are expected to file a response by June 13.

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