Antitrust Law Daily Wrap Up, PRIVACY NEWS: FTC Consent Order Would Bar Online Advertiser from Using Technology to Track Users’ Browsing History, (Dec 5, 2012)

By Tobias J. Gillett, J.D., LLM.

Online advertising company Epic Marketplace, Inc. has agreed to settle charges that it employed technology to harvest details of consumers’ internet browsing history without disclosing the use of the technology in its privacy policy. A proposed consent order would require Epic to cease using the technology in its business, prohibits future misrepresentations about its privacy policies, and requires it to destroy all data gathered by it through the technology.

Epic Marketplace engages in online behavioral marketing, which involves tracking consumers’ online activity and targeting advertisements to interests and preferences shown through that activity. According to the FTC’s complaint, Epic purchased advertising space on 45,000 websites, including websites such as cnn.com, papajohns.com, redcross.com, and orbitz.com, and contracted with advertisers to fill that space. When a consumer visited a website within Epic’s network, Epic would leave a cookie in the consumer’s browser, or open a cookie already set.

However, on at least 24,000 of these websites this cookie would also permit Epic to determine whether the consumer had visited any of 54,000 other websites, including websites related to bankruptcy, infertility, incontinence, debt relief, and other concerns. Epic would use this information to tailor advertising to the consumer. Stanford Law School’s Center for Internet and Society uncovered this practice, and published its results online.

Although Epic’s privacy policy disclosed that it would set and receive cookies in users’ browsers, and collect information about users’ visits to sites within Epic’s network, it did not reveal that Epic also used the cookies to document users’ browsing history outside of the network. The FTC’s complaint charged that Epic’s collection and use of the browsing history without disclosing that activity in its privacy policy was a deceptive practice in violation of Section 5(a) of the FTC Act.

“Consumers searching the Internet shouldn’t have to worry about whether someone is going to go sniffing through the sensitive, personal details of their browsing history without their knowledge,” said FTC Chairman Jon Leibowitz. “This type of unscrupulous behavior undermines consumers’ confidence, and we won’t tolerate it.”

News: Privacy ConsumerProtection FederalTradeCommissionNews