An ISP’s testing of behavioral advertising with now- defunct Nebu...
An ISP’s testing of behavioral advertising with now- defunct NebuAd is again the subject of a lawsuit seeking class-action status. A federal judge in San Francisco recently threw out the initial suit against NebuAd and its partners (CD Nov…
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13/08 p12) for lack of jurisdiction over the six ISPs that tested NebuAd’s targeting system. KamberEdelson re-filed the suit in the U.S. District Court in Chicago with one of the original 15 plaintiffs, Dan Valentine, against the ISP that served him, WideOpenWest, better known as WOW. It seeks to represent all Internet access customers of WOW, which provides service in Illinois, Michigan, Ohio and Indiana. The suit described as spyware the tracking of clickstream data to serve ads, because NebuAd and WOW inserted “undeletable tracking cookies” on users’ computers and forged “return addresses” so users’ privacy and security controls couldn’t detect the insertions. “Owing to WOW’s unique position as an ISP for a large consumer population, it was able to divert Internet traffic on a massive scale,” the suit said, giving a “highly conservative” estimate that WOW diverted over 100 million incoming and outgoing communications over the five months it ran tests with NebuAd. The diverted communications included personally identifiable information as defined by the Federal Trade Commission, contradicting WOW’s assertions to the House Communications Subcommittee, the suit said. Though behavioral advertising by ISPs has been justified as a revenue generator for those that are struggling to stay in business, especially in rural areas, the suit said WOW’s tests with NebuAd couldn’t be considered an activity “in the ordinary course of business” -- an exemption from liability in the Wiretap Act. The suit also faulted WOW for affirmatively notifying customers only two months after NebuAd technology had been fully deployed, and misleading them into thinking they could opt out of tracking, as opposed to simply not receiving targeted ads.