A new battle is being waged in the online targeting wars. Privacy specialist Joseph Malley filed three lawsuits this month against online ad serving companies that use something called "zombie cookies." Defendants include brands like MTV, Disney and Quantcast.

And while the practice might not be widespread, it could be another blow against Adobe, since it involves advertisers using Flash to track consumers, even after they have deleted their cookies.

The latest suit was filed last week against Specificmedia, one of the largest tracking and ad serving companies online. It's a class action suit that seeks upwards of $5 million in damages. This past summer, Malley filed suits against Quantcast and Clearspring Technologies. Organizations ranging from Disney and Demand Media to NBC and ABC have partnered with these companies to reach consumers.

Considering Malley's track record with privacy cases, the use of "zombie cookies" could be short lived.

Mailey is the same attorney who filed the privacy suit against online tracking company NebuAd that practically put the company out of business and won a $9.5 million settlement from Facebook over its ill-fated Beacon program.

Many of the defendants use Flash to track consumers, which is problematic because consumers are often unaware that Flash cookies persist even after browser cookies have been deleted. As I've written before, the effectiveness of Flash cookies is mostly dependent on users' ignorance of their existence. That practice can't work forever, and according to Malley, companies that use Flash cookies to track users against their knowledge are "in complete violation of federal privacy and computer security laws."

Beyond that, there's this issue of "respawning." According to Wired:

"Several services even use the surreptitious data storage to reinstate traditional cookies that a user deleted, which is called 're-spawning' in homage to video games where players come back to life even after being 'killed,' the report found. So even if a user gets rid of a website’s tracking cookie, that cookie’s unique ID will be assigned back to a new cookie again using the Flash data as the 'backup.'"

For what it's worth, Adobe condemns such practices. Adobe chief privacy officer MeMe Jacobs Rasmussen told the FTC in February:

“Adobe believes it is important to get a better understanding of the landscape in order to have a basis to decide on the range of ‘bad’ and ‘good’ uses of [Flash] storage, and whether there are any actions that companies that own these technologies can take to address those misuses.”

If Adobe manages to distance itself from these respawning practices, a win by Malley could be good for the company in this case. But it could be an uphill climb. Already, Flash has come under fire in the mobile sphere because of Apple's issues with it. As more developers build mobile focused content, Flash could start to fall out of favor for multimedia content. Add to that some privacy concerns from advertisers and consumers and Adobe could really start to have a problem on its hands.

Meghan Keane

Published 25 August, 2010 by Meghan Keane

Based in New York, Meghan Keane is US Editor of Econsultancy. You can follow her on Twitter: @keanesian.

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Comments (1)


Simon Griffiths

It's hard to believe that this is still going on. I remember writing a post about a year ago after I had argued with a firm that was using this technique to persistently save where a client had been on their site, whether they deleted cookies or not. I seem to remember that there comment was "Privacy is dead isn't it?". Thankfully it isn't!

If you do want to know how to delete them btw I posted a video at http://simongriffiths.name/2009/10/12/flash-cookies-a-privacy-issue-how-to-delete-them/.

almost 8 years ago

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