No Harm No Foul For Zombie Cookies
It’s always interesting when a court adopts a playground cliché. A company called Specific Media certainly is glad it did. A federal court in California last week dismissed a class action complaint against Specific Media because, literally, the plaintiffs did not allege any harm from the conduct that spurred the complaint’s filing. The class complaint alleged that Specific Media placed “zombie cookies” on the plaintiffs’ computers when those plaintiffs visited certain Web sites. The cookies are “zombies” because they remain active even when users hit the “delete cookies” function. The cookies then collect information about the user. The class complaint alleged that the practice violated the users’ privacy and the Federal Computer Fraud and Abuse Act. According to the complaint, the mere collection of that information deprived the users of the economic benefit of that information. But the court didn’t see it. Without more, the collection, in itself, didn’t constitute harm. And under Article III of the Constitution, that dooms a federal lawsuit. A plaintiff who can’t allege harm lacks “standing.” And of course, the Computer Fraud and Abuse Act demands not just damage, but damages totaling $5000. Here, the plaintiffs missed that minimum by approximately $5000!