• by Wendy Davis  @wendyndavis, February 3, 2009

Internet service providers facing a lawsuit for allegedly violating subscribers' privacy by working with behavioral targeting company NebuAd are asking the court to dismiss the cases against them.

The broadband providers argue that they can't be sued for violating federal or state privacy laws if they didn't intercept any subscribers. In court papers filed late last week, they argue that NebuAd alone allegedly intercepted traffic, while they were merely passive participants in the plan.

"The most plaintiffs can say regarding the ISP defendants is to make passive allegations, suggesting that someone 'permitted' the interception," broadband companies Knology and WOW wrote in legal papers filed in the federal district court for the northern district of California. Other Internet service providers named as defendants made similar arguments.

In November, 15 Web users sued NebuAd and six Internet service providers--Bresnan Communications, Cable One, CenturyTel, Embarq, Knology and WOW--for violating their privacy by deploying a behavioral targeting platform. NebuAd purchased information about subscribers' Web activity from Internet service providers and used that data to send people targeted ads.

NebuAd said that all data collected was anonymous, because the company didn't know users' names or phone number or keep copies of the IP addresses associated with users. NebuAd also said that it did not collect sensitive data, and that users could opt out of the platform.

But the platform proved to be controversial because of the scope of information available to NebuAd. Unlike older behavioral targeting companies that only collected data from a network of publishers, Internet service providers have access to everything--including activity at search engines and at non-commercial sites.

The company's emergence spurred Congress to hold hearings, and following this, NebuAd suspended plans for further tests.