Siding with ad network Turn, a federal judge has dismissed a lawsuit accusing the company of using a controversial technology to recreate cookies that users deleted.
U.S. District Court Judge Jeffrey White in the Northern District of California said in an opinion issued Monday that the consumers who sued didn't spell out in the complaint how they were injured by the tracking technology. White gave the consumers “leave to amend,” meaning they can beef up their allegations and re-file the complaint.
The decision grows out of a 2015 lawsuit brought against Turn by New York residents Anthony Henson and William Cintron. They alleged that Turn violated a New York consumer protection law prohibiting deceptive practices, and also trespassed on their devices.
The allegations centered on Turn's use of “headers” -- 50-character alphanumeric strings -- that Verizon Wireless 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 headers to recreate cookies.
The company -- which previously settled Federal Trade Commission charges related to its tracking technology -- urged White to dismiss the lawsuit for several reasons.
The company argued that the allegations by Henson and Cintron, even if true, weren't enough to prove that it deceived consumers.
White rejected that theory. “The question of whether the failure to disclose the nature of how the cookies work to defeat the deletion would mislead a reasonable consumer is sufficient to withstand the motion to dismiss,” he wrote.
But he also found that Henson and Cintron didn't spell out how they were injured by the zombie cookies. He said in the ruling that the consumers didn't spell out in their complaint that the data collected was “confidential” and personally identifiable.
White also dismissed the claim that Turn trespassed on the consumers' devices, but said they could re-file that claim if they're able to allege that the zombie cookies “caused substantial degradation to the functioning of their devices.”
White gave Cintron and Henson until early January to bring an amended complaint.