In 2010 and 2011, a flurry of class action lawsuits alleging unlawful use of so-called Flash cookies was filed against numerous online companies. The complaints have asserted that defendants' websites used Adobe Flash files called locally stored objects, or "Flash cookies," to bypass users' privacy controls and track their online activity without their knowledge or consent. The class action plaintiffs have asserted violations of various federal and state electronic data privacy and computer crime laws.
The first such complaints were filed within a year after a U.C. Berkeley study claimed that some popular websites were using Flash cookies to "respawn" HTTP cookies that users tried to delete. The researchers asserted that websites using these resilient Flash cookies could perpetually track users' online activity unbeknownst to the users.
Some courts have dismissed these data privacy claims, for reasons that include failure to allege adequate facts or sufficient injury. But that does not necessarily mean those cases are over. In some instances, plaintiffs have been granted the opportunity to amend their complaints, while in at least one other case, the plaintiffs continue to prosecute surviving common law claims for consumer fraud and trespass to chattels.
Meanwhile, some of these class actions reached final settlements in 2011, and other settlements are pending. At least two of closely watched cases settled for as much as $2.4 million, with a significant portion to be paid to nonprofits engaged in consumer data privacy protection. In addition, the settling defendants agreed to implement certain measures to prevent Flash cookies from respawning web browser cookies that users have intentionally deleted. These measures include requirements that the accused website's privacy policies adopt rigorous notice requirements that provide a means for users to opt out of online behavioral advertising that employs Flash cookies.
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