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Cookie respawning, history sniffing case dropped

Ad network didn't cause enough harm, says US judge

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A computer user who alleged that an advertising network breached US privacy laws did not prove she had suffered sufficient damages for those charges to be further examined, a US court has ruled.

Sonal Bose claimed that Interclick's use of Flash cookies and "history sniffing" code "invaded her privacy, misappropriated personal information and interfered with the operation of her computer", according to a district court in New York.

Cookies are small text files that websites store on internet users' computers. The files record users' activity on the site. Flash cookies are files stored by websites that use Adobe Flash media, such as in adverts or video clips. Flash cookies can also back up the data that is stored in a regular cookie. When you delete cookies using your browser controls, your Flash cookies are not affected. A website that served a cookie to you that you deleted may recognise you on your next visit if it backed up its now-deleted cookie data to a Flash cookie.

Advertising networks use cookies to track user behaviour on websites in order to target adverts to individuals based on that behaviour.

Interclick used Flash cookies to "respawn" cookies Bose had deleted, and used "history sniffing" code to determine content that Bose had viewed online. Both techniques helped Interclick serve Bose with targeted ads, she claimed, according to the ruling. Bose claimed Interclick's activity violated the US Computer Fraud and Abuse Act (CFAA), the ruling said.

Under the CFAA a person is prohibited from causing damage by intentionally accessing a protected computer without consent. Unless a damages claim for violations of the CFAA exceeds $5,000 in a period of a year no action for damages can be taken against the company under the terms of the Act, the Act provides.

The CFAA states that only claims for "economic damages" can be made. The judge ruled that Interclick's collection of Bose's personal information did not raise an economic "injury" that was worth more than the $5,000 threshold. Bose had argued that Interclick had obtained information about her online activity without her permission as she had taken steps to delete cookies and protect her privacy.

"Even if Bose took steps to prevent the data collection, her injury is still insufficient to meet the statutory threshold," the judge said in the ruling.

Bose also claimed that Interclick had "impaired the functioning and diminished the value" of her computer. The judge ruled that Bose had failed to "make any specific allegation as to the cost of repairing or investigation the alleged damage" and ruled that, as a result, Bose had failed to meet the damages threshold for that charge to be further investigated by the courts.

Bose's third claim, that Interclick caused interference with the operation of her computer, was unsubstantiated and therefore failed to meet the damages threshold for pursuing the charge, the judge ruled.

"Even if a flash cookie may reach up to 100 kilobytes in size and may occupy space on Bose's hard drive, Bose fails to demonstrate that the flash cookie caused damage, a slowdown, or a shutdown of her computer," the judge said. "Thus, Bose's claim of interruption of service is insufficient to meet the ... threshold," the judge said.

Bose's case was part of a so-called "class action" against Interclick. Class action lawsuits are common in the US, where lawyers will earn large fees for organising many similarly affected people into bringing proceedings against organisations.

Bose had argued that her damages claims should be "aggregated" with other members of the class action, but the judge said that they could not.

"[Bose] here has failed to allege facts that would allow this Court to conclude that damages meet the ... threshold, even when aggregated across the putative class," the judge said.

Copyright © 2011, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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