Tools that track users’ whereabouts on the Web are facing increased regulatory and public scrutiny and prompting a flurry of legal challenges.
Since July, at least six suits have been filed in U.S. District Court for the Central District of California against websites and companies that create advertising technology, accusing them of installing online-tracking tools that are so surreptitious that they essentially hack into users’ machines without their knowledge. All of the suits seek class-action status and accuse companies of violating the federal Computer Fraud and Abuse Act and other laws against deceptive practices.
In 2001 and 2003, courts ruled that websites could place small text files called “cookies” on machines. Cookies allow sites to remember users, so they don’t have to log in user information on each visit. But they can also be used to track users across websites, compiling a profile of a user’s browsing interests.
The earlier decisions said tracking across websites was legal. Since then, online tracking has become the foundation of the $23 billion online advertising industry. The industry says tracking tools help subsidize content, allowing many websites to be free to users.
The new lawsuits challenge the older rulings because modern tracking tools are more sophisticated than early cookies.
In one of the lawsuits, filed last week in the Central District of California, three California residents sued Cable News Network, Travel Channel and others over alleged tracking of Web surfing on mobile phones using technology that the suit says is particularly difficult to delete. A spokesman for Scripps Networks Interactive Inc. (NYSE: SNI - News), which controls the Travel Channel, said the company doesn’t comment on pending litigation. Time Warner Inc. (NYSE: TWX - News), which owns CNN, declined to comment.
Another suit, filed earlier this month, accuses Fox Entertainment Group and the American idol.com website of using a new kind of cookie—known as a Flash cookie—that can “re-spawn” tracking files that users have deleted, without users’ knowledge. News Corp. (NASDAQ: NWS - News), which owns Fox Entertainment Group as well as The Wall Street Journal, declined to comment on the litigation.
The tools cited in the suits are part of an “arms race” in tracking technologies, said Chris Hoofnagle, director of the Berkeley Center for Law & Technology’s information-privacy programs. Some users, uncomfortable with tracking, now routinely block or delete cookies. “There are some in the industry who do not believe that users should be able to block tracking, so they are turning to increasingly sophisticated tools to track people,” he said.
One such technology involves “Flash cookies,” which use Adobe Systems Inc.’s (NASDAQ: ADBE - News) popular Flash program to save a small file on a user’s computer. Flash is the most common way to show video online. Flash cookies can be useful for remembering preferences, such as volume settings for videos. But marketers also can use Flash cookies to track users online.