Avenue A Hit With Privacy Lawsuit

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Add Avenue A to the list of online ad services firms such as DoubleClick and MatchLogic that have been named in class action privacy lawsuits for tracking consumers' Web-browsing behavior.

The complaint against Avenue A, filed Nov. 20 in U.S. District Court in Seattle on behalf of five plaintiffs, alleges that, "Avenue A has covertly, without consent, and in an unauthorized manner, implanted Internet 'cookies' upon Internet users' computer hard disk drives."

According to the suit's plaintiffs, the types of information wrongly collected include names, home addresses, e-mail addresses, Web pages visited and online purchasing history.

The demands of the plaintiffs include requests to have Avenue A stop the tracking of consumers, purge all personal information collected, pay unspecified damages to the plaintiffs and forfeit profits derived through tracking practices.

"We believe that the lawsuit is without merit and includes a number of erroneous assertions about how Avenue A operates and how the World Wide Web in general operates," Avenue A CEO Brian McAndrews said in a statement.

The claims against Avenue A closely resemble allegations filed on the same day against MatchLogic in Denver's U.S. District Court.

Reportedly, the five plaintiffs in that suit allege that MatchLogic collects and uses personal information of consumers without their knowledge through the use of cookies.

Damages sought in the MatchLogic suit also are unspecified.

And while it appears to be open season on online ad services providers, at least one attorney who specializes in advertising and marketing law doubts the plaintiffs can win.

"To me, this is a distant long shot," said Douglas J. Wood, a partner at Hall Dickler Kent Goldstein & Wood LLP, New York. "The issue is adequacy of disclosure to the consumer, but there's no statutory law that exists on the books at this point that prohibits companies from doing this."

Both Avenue A and MatchLogic are members of industry standards group Network Advertisers Initiative, and claim to follow the self-regulatory privacy principles approved by the Federal Trade Commission in July. They include providing consumers with notice that data is being collected and the choice to opt out.

Meanwhile, privacy advocate Jason Catlett thinks these suits may hold up.

"There may be no laws regarding cookies, but courts have made leaps of interpretation on technologies in the past," said Catlett, president of Junkbusters Corp., Green Brook, NJ.

Indeed, though the Electronic Privacy Act and the Computer Fraud and Abuse Act were passed before Internet cookies came onto the scene, the suits against Avenue A and MatchLogic cite these statutes.

Catlett said he is surprised that more suits of this nature have not been filed. He said that while DoubleClick's attempt to marry data from offline catalog concern Abacus to clickstream data for banner targeting purposes captured the attention of the media and the public for so long, other ad firms were quietly getting away with similar profiling techniques.

"Any online ad company that uses cookies to track people without consent should be preparing a legal defense," he added.

Wood, however, pointed out that the collection of data is nothing new online or offline and that in most cases it is perfectly legal.

"The law -- in the United States anyway -- doesn't afford you that kind of protection," he said.

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