The Ninth Circuit Court of Appeals has ruled that a contract arbitration clause that Verizon imposed on its subscriber customers cannot bar a class action against internet advertiser Turn, Inc. over data collected from customers without their knowledge or permission. Online advertising company Turn is being sued by Verizon Wireless cellular subscribers in federal court in California over privacy violations on claims that the company improperly monitored and tracked consumers’ online behavior through their phones. Turn allegedly attached hidden undeletable “zombie” tracking cookies to harvest customers’ web browsing and usage data.
Turn attempted to escape the class action lawsuit by arguing that customers should be bound by the forced arbitration clauses in their Verizon contracts. As reported by Ars Technica, the judges stated that “Turn attempts to invoke the arbitration agreement between [the plaintiff] Henson and Verizon to compel arbitration, but Henson and Turn do not have an arbitration agreement with each other.” Because Turn and Verizon are two independent companies, the arbitration clauses in one contract do not cross over to apply to disputes between customers and the other company.
In January 2015 when the lawsuit first came about, ProPublica reported that Turn was “taking advantage of a hidden undeletable number that Verizon uses to monitor customers’ habits on their smartphones and tablets. Turn uses the Verizon number to respawn tracking cookies that users have deleted.”
Lieff Cabraser attorney Michael W. Sobol explained the overall significance and privacy concerns in this case. “Cookies have various purposes, but ultimately they help keep track of your browsing activity,” he said. “Advertisers increasingly use third-party tracking cookies that act as a beacon, transmitting your browsing history back to the third party who first generated the cookie. This browsing history can provide a startlingly detailed picture into the user’s life because we use the internet for everything—health care, shopping, dating, news, and so on.”
Sobol added, “We allege that by devising a scheme to secretly revive deleted cookies, Turn could maintain an uninterrupted chain of browsing history despite users’ express efforts to delete that history from their devices and browsers.”
The lawsuit brings additional allegations against Turn that the company acted in secret to implement these zombie cookies without Verizon’s knowledge, consent, or approval. “The underlying dynamic remains worrisome: Internet advertisers have strong financial incentives to circumvent user privacy and the ability to employ fast-evolving technology to do so secretly,” explained Sobol.
The case is In re: Anthony Henson et al. v. U.S. District Court, case number 16-71818, in the U.S. Court of Appeals for the Ninth Circuit.
Contact a National Lieff Cabraser Digital Privacy & Data Protection Attorney
Lieff Cabraser represents plaintiffs in class action litigation alleging that internet marketing company Turn, Inc. violates users’ digital privacy by installing software tracking beacons on smartphones, tablets, and other mobile computing devices. The complaint alleges that in an effort to thwart standard privacy settings and features, Turn deploys so-called “zombie cookies” that cannot be detected or deleted, and that track smartphone activity across various browsers and applications, conduct that lawsuits allege violates consumer protection statutes and the common law.
If you own a smart mobile device — for example, an iPhone or Android phone or tablet — and you have a Verizon data plan for that device, your privacy rights may have been violated by Turn. Contact us today for a free, no-obligation review of your case.