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Summary:

The ad agency interclick took an unusual tactic in defending itself this week against recent lawsuits alleging the company and its customers…

Scott Kamber

The ad agency interclick took an unusual tactic in defending itself this week against recent lawsuits alleging the company and its customers violated users’ online privacy: it took a shot at its opponents’ law firm. Without actually naming the firm, it implied that the firm was filing bogus privacy suits, saying in a press release that the firm had filed “a spate” of such lawsuits and noting that “claims similar to those against interclick have been dismissed by some Federal courts.”

The firm interclick was referring to is KamberLaw, headed by Scott Kamber, a high-profile lawyer who’s at the heart of the small, but growing, world of online privacy lawsuits and may be best known in privacy circles for leading the litigation against Facebook’s Beacon Ad program.

In recent months, Kamber has filed a series of class action lawsuits alleging various privacy violations on the part of internet companies. He’s sued interclick and its customers for ‘browser history sniffing’ and improperly using Flash cookies to track users; Quantcast and Clearspring over different allegations of misusing Flash cookies (they settled); and Apple (NSDQ: AAPL) and Google (NSDQ: GOOG) over other privacy issues. In an interview with paidContent, Kamber talked about why he’s suing these firms and also explained why he believes litigation is an effective tool to protect users’ privacy online.

paidContent: What did you think of interclick’s response to your complaint?

Scott Kamber: Interclick appears to be a company concerned with its investors first. They’re issuing press releases instead of filing legal papers. If interclick would truly like to fight this case, we look forward to any attempt they have to dismiss the case, and we’ll have that heard in court.

The interclick statement took the unusual tactic of specifically citing your law firm as having filed a “spate” of lawsuits related to online privacy. They specifically mention that you’ve just sued Google and Apple over online privacy issues. (We asked interclick to elaborate on their statement but didn’t hear back.)

Yes, my firm filed a case against Google in November. But it had to do with Google’s toolbar. It’s completely different [from this lawsuit against interclick]. And none of the suits we’ve brought [over the Flash cookies issue] have ever been dismissed by a court. The Apple suit is slightly related in that it deals with poor privacy practices — but it’s not a Flash cookie case. None of our cases that are like this case have ever been dismissed. And I will dare [interclick] to find a privacy case by my firm that wound up being dismissed.

There’s some talk among the defense bar that some online privacy lawsuits are really keyed off headlines, especially the Wall Street Journal’s. For example, your suit against Apple over alleged privacy violations in certain apps was filed just 5 days after the WSJ published its most recent privacy story about smartphone apps, and another firm filed a similar suit the same day.

We had been working on this set of privacy cases for almost eight months before the first Wall Street Journal privacy article ran in August. That WSJ series was touched off by a lot of research by internet and computer security researchers, like Chris Hoofnagle at Cal Berkeley. The Journal, to their credit, put that information into a form that people were able to latch on to and understand.

Our suits are not based off The Journal‘s article. They’re based off research — some of the same research that inspired the WSJ stories in the first place. But once we saw that article, we accelerated our filing [of the lawsuit against Apple and several app providers] on behalf of our clients.

How do you find the clients for these class action cases?

We don’t find them. Our clients find us. In the Flash cookie cases, people read news stories or blog entries. They call us because they’re concerned about them. We are the largest firm in the country dedicated almost exclusively to internet and technology privacy cases. I was the only plaintiff’s attorney in the U.S. invited to speak to the OECD [Organization for Economic Co-operation and Development] privacy conference. There’s my partner David Stampley-former New York Assistant AG, former general counsel of a large computer security company. All of our lawyers have a good technology pedigree.

And we got the [$9.5 million] Facebook Beacon settlement. That’s the largest single [online] privacy settlement that I’m aware of.

It seems like there have been many more internet privacy lawsuits filed in recent months. Do you see an increase, and, if so, what do you see as the reason for that?

People are more aware of online privacy issues. You now probably have two or three dozen researchers nationally that do nothing but internet privacy. And I think the Google WiFi case really brought governmental concern on an international scale. At the OECD conference, where more than 30 countries were represented, there was dramatic concern about internet privacy. The internet is where we shop, bank, and get our news — so everyone is rightfully concerned about whether we have privacy safeguards online.

But are class action lawsuits like yours the right approach? The FTC, the Commerce Department, and Congress are all discussing internet privacy issues now. Shouldn’t this be a policy consideration and not subject to constant litigation?

We are the consumer voice for self-regulation. That’s really what our role is. Our country permits class actions, and we are using laws that apply quite nicely in these contexts. In some situations, we’ve worked together with state AGs.

The alternative is, if you have companies that do not address these problems, and lawsuits don’t do it, then they’ll be saddled with government regulation. Many companies react quite productively to our suits. We’re not trying to harm the company, we’re trying to redress the harms done to the consumer. We have attorneys at my firm who are experts in this area, and we get results. We’re not trying to destroy advertising as revenue, either. We’re just trying to ensure the work done by corporations is not at the expense of their customers.

More Reading:

»  Bose v. Interclick Class Action Complaint, filed 12/8/10 [PDF]
»  Bose v. McDonald’s et al. Class Action Complaint, filed 12/23/10 [PDF]

»  Lalo v. Apple et al. Class Action Complaint, filed 12/23/10 [PDF]
»  Weber v. Google Class Action Complaint, filed 11/5/10 [PDF]

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  1. Given the extremely negative things I’ve said about him on my blog, I’m sure no one is expecting me to say anything nice about Scott Kamber. But I would like to draw attention to the recent, groundbreaking Satterfield case. I’m not sure if he was personally involved, but KamberEdelson helped represent Laci Satterfield, the lead plaintiff. It seems to have reached an excellent result, after reaching the 9th Circuit. I’m astounded it hasn’t received more press. Seeing that the (alleged) text message spammer (or its deep-pocketed customer’s customer) paid out $175 to each class member is likely to make the vast majority of potential text message spammers decide to pursue a different line of fork.

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