• by Wendy Davis  @wendyndavis, June 14, 2018

Two New York residents who are suing Turn argue in new court papers that they should be allowed to proceed with allegations that the ad company violated their privacy by using a controversial tracking technology to recreate deleted cookies.

Turn -- which previously settled Federal Trade Commission charges related to its tracking technology -- recently argued that its practices were too "mundane" to warrant a federal lawsuit. Anthony Henson and William Cintron are now asking a judge to reject the company's contentions, arguing that Turn's tracking amounted to "serious misconduct."

"Turn tracked and compiled data from mobile device users by secretly thwarting industry-standard privacy protections intended to prevent Turn’s intrusions," they argue in in papers filed Wednesday with U.S. District Court Judge Jeffrey White in Oakland, California. "Turn seeks to minimize its serious misconduct, but actions speak louder than words: within days of its practices being made public, Turn promised to stop them."

The legal dispute dates to 2015, when Henson and Cintron sued Turn for allegedly violating a New York consumer protection law prohibiting deceptive practices. Their lawsuit came soon after reports emerged that Turn was 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 were not 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.

Turn recently asked White to dismiss the suit, arguing that its alleged use of "zombie" cookies didn't violate New York's consumer protection laws, and that Henson and Cintron didn't suffer any injury as a result of the alleged tracking and ad-targeting.

Henson and Cintron counter in their new papers that a federal judge in New York previously allowed web users to sue over a tracking technology. That matter involved ad company Interclick, which allegedly tracked people via "history-sniffing" technology -- which involved exploiting a vulnerability in browsers to discover which sites users previously clicked on.

"The point is not, as Turn repeatedly argues, that Turn delivered advertisements to Plaintiffs," they argue. "The point is that Turn secretly thwarted mobile users’ privacy safeguards, including affirmative efforts to delete past browsing history and cookies."

White is slated to hold a hearing in the case on July 20.