Saturday, April 20, 2013

Persistent Identifiers and Invasive Tracking via Flash Cookies viz. LSOs (Local Shared Objects) are leading to Increased Litigation

Alycia N. Broz and Robert J. Krummen of Vorys Sater Seymour and Pease LLP report at Lexology on an increasing number of lawsuits being filed regarding an increasingly new threat to computer user privacy in:

Flash Cookies Litigation: the next wave or a “Flash” in the pan?

Nothing useful has come out of the courts on this issue up to now. The courts generally lag far behind actual developments, and that is due to the inherently conservative nature of law and jurisprudence. Only when things really begin to get out of hand do courts (and legislatures) act, if at all.

Just look at the legal mess that exists today in intellectual property law (patents, copyrights, trademarks).

We were reminded again recently of the burgeoning legal problem of flash cookies as Spy Bot - Search & Destroy ® told us that it had identified and removed nearly 70 so-called "flash cookies" from our PC computer.

"Normal cookies" (also known as "HTTP cookies", "web cookies", or "browser cookies", and in function, often "authentication cookies") perform many essential functions, and to our way of thinking are not particularly invasive,

while "flash cookies" are more correctly referred to as LSOs, i.e. Local Shared Objects, which perform invasive tasks on the user's computer, tasks which to our way of thinking clearly invade user privacy without the user's knowledge.

Indeed, flash cookies are being used as "persistent identifiers" because they are able to restore "normal cookies" deleted by a user, which then allows advertisers to track the behavior of users even though they have "opted out" of tracking by the fact of their having deleted the normal tracking cookies. Flash cookies also are able to persist across browsers, so it makes no difference whether you visited a site once with Firefox, another time with Chrome and a third time with Internet Explorer. Flash cookies can handle that.

See Web Browsing Tracking Technologies ("Flash Cookies") at (Council of American Survey Research Organizations).

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