Jonathan Bick and Elan Raffel write:
Behavioral-based marketing targeting is a technique used by traditional and internet publishers and advertisers to increase the effectiveness of their campaigns. In the past, marketing firms conducted surveys of readers’ preferences and affiliations. Today, internet marketing firms collect data associated with individuals’ internet behavior. Said collection efforts have been found to be lawful. However, the use of new technology makes keeping internet behavior private more difficult and has given rise to renewed claims of unlawful intrusiveness by internet data. It has also revived an argument that such behavior violates privacy expectations and thus is unlawful.
In short, a court considering the lawful use of flash cookies will likely hold that flash cookie users will not be liable under any federal laws because their use will fall within the consent exceptions under the Stored Communications Act and the Wiretap Statute. Additionally, flash cookie users will not be liable under the Computer Fraud and Abuse Act because it is unlikely the plaintiffs will meet the statutory threshold of $5,000 in losses. Nevertheless, as the FTC becomes more stringent in enforcing notice requirements for behavioral targeting, websites that use flash cookies should be prudent in ensuring that they provide the appropriate notice to consumers.
Read the full article from the New Jersey Law Journal on Law Technology News.