Nearly all computer users have experienced the invasion of tracking devices known as cookies. These devices invade a computer when a user visits merchant or other websites while looking for a great deal or just researching product information.
Consumers dislike cookies because these digital organisms collect personal information about you and send it back to their host: an advertising network. That information can include your purchasing habits, your location, your age or demographic group, and even your general financial status. Triggering your computer to send this information back to the host slows your computer’s responsiveness, however a far more intrusive aspect of cookies is the invasion of privacy.
Web surfers are accustomed to the process of deleting these pests on a regular basis to keep personal information personal and out of the hands of advertisers. But a new generation of cookies has been fighting back.
Known as Flash cookies, these tracking bugs are dead cookies resurrected by hijacking legitimate Adobe Flash software you have previously installed. The cookies are re-spawned inside your computer faster than a dead G.I. in a combat video game. Moreover, they are hiding in computer directories not governed by traditional web browser privacy controls; directories which users are not normally aware of, such as “etag” cache files or Flash local storage. Controls and privacy settings cannot be found on your computer or web browser. They exist only on Adobe’s Flash software website and are not easily located.
In fact, the surprise and privacy concerns over these zombies specifically results from the fact that computer users, believing they have purged their systems, do not realize they are still being tracked. Infuriated online consumers have brought a number of lawsuits against the technology companies that have engineered this tracking as well as suits targeting customers of those web technology firms.
An article on wired.com reported in July 2010 of an imminent group of legal cases and over the last 14 months, there have been six class-action lawsuits. One set of defendants consisted of the technology firm Quantcast and its customers, NBC Universal and HULU. Another set centered on Clearspring Technologies and its customers, Disney/ABC and Warner Brothers Records. These lawsuits and another one against Specific Media, Inc. were settled for $3.4 million.
The lawsuits are about privacy rights, specifically the right of users of online services to determine for themselves how their Internet activities and personal information can be “harvested and disseminated,” according to a New York Times article. However, plaintiffs are finding the court process hard going.
A suit against advertising firm Interclick and its customers, which include McDonalds, Microsoft, and Mazda, failed on the grounds that no significant damage to the plaintiffs has occurred. According to a legal blog, the claim was brought under New York State’s Computer Fraud and Abuse Act and alleged impairment to the plaintiff’s computer, injury due to the collection of private information, and injury from Internet service interruption.
The court rejected the plaintiff’s injury claims saying that damage, if any, was negligible under the requirements of the CFAA. In other words, the plaintiff had not been sufficiently injured in terms computer impairment, the unauthorized collection of personal information, or service interruption in order for the court to sanction the defendants. The court also declared that the various advertisers who used Interclick services were not legitimate targets of such lawsuits.
Plaintiffs, on the other hand, said their desire to not be tracked was clearly declared by the action of deleting the cookies they knew about and the very act of countermanding that desire is an unacceptable invasion of privacy no matter what economic or technological damages may result.
Plaintiffs are now asking where the Federal Trade Commission stands in this matter and whether national and state privacy legislation will be strengthened. Ultimately, the court of public opinion expressed in purchasing habits that move away from the Internet and toward brick and mortar merchants may influence Internet advertising networks. In the meantime, Flash cookies will continue to be a nuisance for online consumers as long as the courts do not see merit in the complaints.