Consumer Class Tells AOL to Toss the Cookies

     BOSTON (CN) – A federal class action demands that AOL stop intruding on millions of people’s privacy by tracking their Web browsing and selling the information to third-party advertisers.

     Co-defendants ScanScout and Brightcove also are accused of overriding privacy controls on private citizens’ computers to install temporary files, or “cookies.”
     The three defendants allegedly use Adobe flash technology to do their offensive snooping, but Adobe is not named as a defendant.
     ScanScout, which provides video ad services to AOL and others, uses Brightcove technology to display online video content and track consumers’ viewing patterns, lead plaintiff Sandra Person Burns says in her 47-page complaint.
     “AOL was a minority investor in Brightcove until earlier this year,” the complaint states.
     Burns says class members pay monthly subscription fees to AOL for service that includes Web browser controls, which “AOL purported would clear cookies, browsing history, and other web-browsing artifacts from their computers but which, because of defendants’ conduct, did not do so.”
     She estimates the class is in the millions.
     “To avoid being tracked online, plaintiff and class members used and relied on their browser controls to block and/or delete browser cookies from tracking companies, including defendants,” the complaint states.
     “Since approximately 1997, typically approximately five times a week, plaintiff used her browser controls to delete browser cookies on her computer (which AOL described as ‘small files kept on your computer that websites use to track your visits’) and clear her browsing history, browser cache, blocked pop-ups list, saved thumbnail images and search history.
     “Plaintiff did so to protect her privacy interests and to improve the performance of her computer while she browsed the web.”
Burns says the class “reasonably expected their browser controls to block or delete cookies, preventing them from being tracked online, profiled, and served behaviorally targeted advertisements.”
     The main purpose of cookies – messages sent by a server to the user’s browser – is to identify users, store their preferences and prepare customized Web pages for them.
     The Internet Engineering Task Force labeled third-party cookies “unverified transactions” and warned that they pose a threat to consumers’ online privacy and security.
     However, “with the dominant browsers in the market defaulting to acceptance of third-party cookies, online advertising companies were able to engage in widespread ‘network advertising’ and tracking by delivering ads to many websites,” the complaint states.
     “The moment a consumer connects to the Internet, tracking companies bid against each other in automated, real-time auctions for the chance to track and target the consumer. …Tracking companies observe where consumers click, whether on a website or in a commercial email message. They track consumers from the moment of seeing but not clicking on a product ad to the consumers’ purchase of the product many days later. Many tracking companies claim their tracking and profiling is anonymous when, in fact, they merge consumer profiles with purchased profile data about the individual consumers’ online web activities and offline shopping, as well as details about income, education, family status and number of children, type of vehicle driven, and location of residence and work.”
     Many consumers are unaware that their online activities are monitored. Their only protection against tracking is a browser control that blocks or deletes cookies, the complaint states.
     Despite AOL’s representations, Burns says, she discovered that the defendants had stored Adobe Flash files – called local stored objects (LSOs) – on her computer to track her online activities.
     The Adobe Flash Player software is used to play video content on Web pages designed using Flash technology. Such websites often store LSOs – which retain audio volume preferences and online video game scores – on the computers of consumers using Flash Player.
     But Burns says, “Defendants stored LSOs on plaintiff and class members’ computers for a different purpose; they used LSOs as substitutes and back-ups for browser cookies. …
     “On plaintiff’s computer, she discovered LSOs set by Brightcove dating back to 2009, including one in which Brightcove set an LSO for another third party tracking and including several in which Brightcove set LSOs for AOL, including for its advertising network.”
     Burns says AOL and ScanScout stored tracking devices on her computer as early as 2006 and used them to collect information about her online activities. She says AOL transmits such information to other tracking companies.
      Burns adds: “Unlike cookies, for which commercial browsers provide consumers some measure of control, consumers have no reasonable means to block, detect or delete LSOs and are burdened by other, material differences between cookies and LSO.”
     Burns says AOL and the tracking companies used the class members’ private information without their consent and diminished the performance of their computers.
     She seeks class certification and compensatory and punitive damages for violations of the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, Massachusetts’ Privacy Act and Consumer Protection Act, trespass to chattel and unjust enrichment. And she wants the defendants enjoined from tracking consumers.
     She is represented by Konstantine Kyros with Kyros & Pressly.

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