This is the summary of an article by Gavin Dunaway. You can get the original behavioral targeting article here: Suit Filed Against KISSmetrics And Pubs Over ETag Tracking.
During the summer of 2009, Ashkan Soltani, a privacy research wrote a report about the undesirable use of Adobe Flash cookies that use respawning HTTP cookies that remove user privacy controls in essence. Scott Kamber’s law firm filed law suits against three companies using this technology: Specific, Clearspring, and Quantcast. Clearspring and Quantcast responded to lawsuits filed against them for using Flash cookies by promising they won’t use it again, along with a 2.6 million dollar settlement.
The summer of 2011 also saw KISSmetrics and Hulu being reported by Soltani and friends for using Flash cookies plus ETags in respawning and tracking, and Kamber Law Firm is back on the plaintiff’s bench. This law firm also filed against the Beacon advertising from Facebook, Google’s toolbar, demographic profiling by Interclick, and Apple for mobile apps that give unique IDs to advertisers. He is the biggest privacy issue suit-happy police.
KISSmetric has ETag tracking codes that are being used by around 400 websites. Kamber has filed against some of these websites, including AOL, Kongregate.com, Hasoffers.com and AOL. Ad technology companies such as SEOmoz and Conduit are part of the lawsuit as well. It is expected that Hulu will agree on a settlement like Clearspring and Quantcast, for its use of Flash cookies and cookie respawning technology.
Kamber’s lawsuit against KISSmetric and codefendant websites is much more complicated. The use of Flash cookies and ETags violates the Unfair Competition Law from the California Business and Professional Code, the Computer Crime Law of the California Penal Code, and the Electronic Communications Act.
Kamber argues that KISSmetric stores coded tracking information specified for each individual user, much like cookies but in a kind of shadow tracking mechanism. In response, Hiten Shah, the CEO of KISSmetric said the y never used ETags or other persistent tracking technologies. As they are only a small company composed of 17 people, their technology doesn’t have the ability to track users across various websites.
Shah mentioned that Soltani seems to send the message that only browser cookies are valid for tracking website activity, but the truth is many online companies use various tracking technologies, including the ones targeted by Soltani in his papers.
Gap Between Do Not Track and Online Behavioral Advertising
Users can opt out of behavioral advertising because of self-regulation. But cookies are still being used after opt-out for internal publisher and advertiser metrics. There are enforcement mechanisms to this and violations will be duly punished for non-compliance. Ad technology and media companies want to use ETags, Flash cookies, and other “persistent” tracking mechanisms for analytics and essentially harmless tracking. But privacy advocates argue that tracking is still tracking, and these persistent tools are especially harmful as they go around user’s control of privacy.