Here is a link to an article by Wendy Davis on the ongoing issues around the use of Flash cookies.  This article is sort of about a law suit against Specific Media for “allegedly violating Web users' privacy by using Flash cookies for tracking purposes.” 

According to Wendy Davis, the point about Flash cookies is this, “Flash cookies can be used to reconstruct HTTP cookies, even when consumers have deliberately deleted their HTTP cookies to avoid tracking. Because Flash cookies are stored in a different place from HTTP cookies, users who delete the latter don't also shed the former. People can trash Flash cookies via Adobe's online controls, but many users don't appear to be aware of the cookies.”

Two things caught my eye about this law suit.  First, apparently, the law suit claims that Specific Media’s privacy policy is sufficiently opaque and hard to understand as to be misleading.  Here is what the article says, “The company's "privacy documents require college-level reading skills for comprehension and include substantial legalese, ambiguous and obfuscated language designed to confuse, disenfranchise, and mislead the users," the lawsuit asserts. “

Can you imagine, privacy policy documents written in legalese – there is a shock and a surprise.  Can you imagine that “ordinary” users don’t really understand all that legalese – another shock and surprise.  Furthermore, when was the last time anyone really read all that stuff.  When did you last read the “terms of use” for anything?

Any setting of standards in this area (privacy) to be fair has to take into account actual behaviors.  Writing a bunch of policy disclosures that are not easily understood and are not read (at least in part because everyone has figured out that they will take for ever to read and even longer to understand), does not cut it.

Another article, also by Wendy Davis, quotes Joe Barton (R-Texas) as follows, “There is now a small army of companies collecting, analyzing, trading, and using information about consumers' habits, purchases, and private data, while some of these practices may be entirely legitimate -- some, in fact, ultimately beneficial to the consumer -- I do worry that not only are many Americans unaware of these practices, but those who seek out information in privacy policies often come up against complicated legalese."

Just in case anyone is wondering what might be ultimately beneficial to the consumer, again from the second Wendy Davis article, here is how John Morse, President of Merriam Webster put it, “We know that the twenty million people who use our site want it to remain free, and we work hard to balance the needs of advertisers, which is what allows the site to remain free, with the privacy needs of our users,"

As I have written before, this is an area that just cries out for some principled basis on which to set expectations about what information can be gathered and how it can be gathered.  Abuses in this area will ultimately undermine usage and adoption thereby undermining the value of the network.  Fair and respectful gathering and use of data will increase usage and adoption and therefore the value of the network.  My proposal is that the regulatory argument should be about where that line is – that is what maximizes the value of the network.  I think this law suit and others like it makes it pretty clear that there are limits beyond which confidence will be eroded and real costs will be incurred.  The costs are hard to measure because they are costs that all of us pay in the form of diminished value in the network.

The other point in the Wendy Davis article on the Specific Media law suit that caught my eye was right at the end she mentions the attorneys bringing the suits and says this, “All of the Flash-cookie suits were filed by lawyers David Parisi and Joseph Malley [who I could not find easily on the web], both of whom are among the attorneys suing defunct behavioral targeting company NebuAd for allegedly violating users' privacy.”  The fact that these cases have not attracted more lawyers and more action may indicate that the bar doesn’t think there is much there or it may indicate that it is early on in a game where the potential damages are poorly understood.