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KISSmetrics Settles ETags Tracking Class Action Lawsuit
By Mike Holter
Analytics company KISSmetrics has reached a class action lawsuit settlement over allegations it used “supercookies” called ETags to illegally track Internet users after they deleted HTTP cookies. A separate class action privacy lawsuit is pending against KISSmetrics and video service Hulu over the same allegations.
The KISSmetrics ETags settlement will resolve a 2011 class action privacy lawsuit, titled John Kim, et al. v. Space Pencil, Inc., et al., accusing the company of violating wiretap laws by using ETags and other supercookies to track people across the Web, even after they tried to protect their privacy by deleting traditional HTTP cookies and enabling “Private Browsing Mode” to block all cookies.
The KISSmetrics class action lawsuit was filed shortly after researchers at UC Berkeley published a report detailing how KISSmetrics used ETags to store information in Web users’ browser caches and re-spawn cookies that were deleted. This ability to re-spawn deleted cookies earned them the nickname “zombie cookies.”
KISSmetrics denied the allegations, saying in a company blog post it has never shared information about a user with a third party, and does not track users across different websites, “nor do we have the ability to do so.”
However, the company reached a class action lawsuit settlement on Thursday to resolve the litigation and move forward, without admitting liability.
Under the proposed KISSmetrics tracking settlement, the company promises to avoid using ETags or other hard-to-delete cookies to track people online without first notifying them and giving them a choice to opt out. KISSmetrics will pay $2,500 to each of the two consumers who sued – John Kim and Dan Schutzman – and $500,000 to the attorneys who brought the case.
The company continues to fight a separate cookie tracking class action lawsuit accusing it of working with video-streaming website Hulu.com to track Hulu users with so-called “zombie cookies,” which re-spawn when users clear their Internet browsers of data files. Plaintiffs in the Hulu privacy class action lawsuit accuse Hulu and KISSmetrics of violating the Video Privacy Protection Act (VPPA) by secretly tracking subscribers online and disclosing what they watch to third parties without their written prior consent.
In August, a federal judge denied Hulu’s motion to dismiss the class action lawsuit, which is seeking damages and restitution for all individuals or entities in the U.S. who visited Hulu.com during the period from March 4, 2011 through July 28, 2011.
The KISSmetrics ETags Settlement case is John B. Kim v. Space Pencil, Inc. d/b/a KISSmetrics, et al., Case No. 11-cv-3796, U.S. District Court, Northern District of California.
The Hulu KISSmetrics Privacy Class Action Lawsuit case is In re: Hulu Privacy Litigation, Case No. 11-cv-03764-LB, U.S. District Court, Northern District of California, San Jose Division.
Updated October 22nd, 2012
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