Stored Communications Act Claim
The Stored Communications Act, 18 U.S.C. § 2701, proscribes the intentional unauthorized access of electronic communication while it is in electronic storage. The consent exception within the Stored Communications Act excludes the interception of communications between users and web sites by DoubleClick.
The court in assessing DoubleClick's relationship with its affiliated web sites held that the web sites had engaged DoubleClick for the precise purpose of delivering targeted advertisements. DoubleClick is only able to provide tailored advertising to specific users by gathering user information and tracking users’ online activities based on the web sites agreement to actively notify DoubleClick when users accessed the site, namely, through the use of cookies. Thus, the web sites had effectively consented to DoubleClick's interception of users' communications with the web sites. This is despite web sites' failure to understand the technology used by DoubleClick in the provision of targeted advertising.
The court held that the long term residence of DoubleClick's cookies on users hard drives excludes the cookies from the definition of "electronic storage" which connotes temporary and transitory storage. Cookies’ identification numbers, which are sent from users' computers, also do not fall within the confines of "electronic storage" and the Stored Communications Act. DoubleClick could not be held liable for accessing the cookies or cookie identification numbers.
The court in DoubleClick further held that even if cookies' identification numbers were assumed to be "electronic communication . . . in electronic storage," DoubleClick's access is still authorized because the Stored Communications Act exempts conduct which is authorized by a user of the service with respect to a communication of or intended for that user. The cookies' identification numbers are internal to DoubleClick communications and are both "of" and "intended for" DoubleClick.
"DoubleClick creates the cookies, assigns them identification numbers, and places them on plaintiffs' hard drives. The cookies and their identification numbers are vital to DoubleClick and meaningless to anyone else. In contrast, virtually all plaintiffs are unaware that the cookies exist, that these cookies have identification numbers, that DoubleClick accesses these identification numbers and that these numbers are critical to DoubleClick's operations."
Read more about this topic: In Re Double Click
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