In re Doubleclick Inc. Privacy Litigation

Citation154 F.Supp.2d 497
Decision Date28 March 2001
Docket NumberNo. 00 CIV 0641 NRB.,00 CIV 0641 NRB.
PartiesIn re DOUBLECLICK INC. PRIVACY LITIGATION,
CourtU.S. District Court — Southern District of New York

Donald V. Young, Donald V. Young & Associates, Chicago, IL, for plaintiff.

David P. Sanders, Janice Ann Hornaday, Jenner & Block, Chicago, IL, for defendants.

OPINION AND ORDER

BUCHWALD, District Judge.

Plaintiffs bring this class action on behalf of themselves and all others similarly situated1 against defendant DoubleClick, Inc. ("defendant" or "DoubleClick") seeking injunctive and monetary relief for injuries they have suffered as a result of DoubleClick's purported illegal conduct. Specifically, plaintiffs bring three claims under federal laws: (1) 18 U.S.C. § 2701, et seq.; (2) 18 U.S.C. § 2510, et seq.; (3) 18 U.S.C. § 1030, et seq.; and four claims under state laws: (1) common law invasion of privacy; (2) common law unjust enrichment; (3) common law trespass to property; and (4) Sections 349(a) and 350 of Article 22A of the New York General Business Law.

Now pending is DoubleClick's motion, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss Claims I, II and III of the Amended Complaint for failure to state a claim on which relief can be granted. For the reasons discussed below, DoubleClick's motion is granted and the Amended Complaint is dismissed with prejudice.

PROCEDURAL HISTORY

This case is a multidistrict consolidated class action. The initial complaint was filed in this Court on January 31, 2000. On May 10, 2000, this Court consolidated the set of related federal class actions against DoubleClick in the Southern and Eastern Districts of New York pursuant to Rule 42(a) of the Fed.R.Civ.P. and Local Rule 1.6 of the Southern and Eastern Districts of New York.2 The consolidated class filed its Amended Complaint on May 26, 2000. Later, pursuant to 28 U.S.C. § 1407(a), the Judicial Panel on Multidistrict Litigation transferred two cases to this Court for pretrial proceedings: Steinbeck v. DoubleClick, 00 Civ. 5705, C.A, N.O. 8:00-98 (C.D.Cal) on July 31, 2000 and Freedman v. DoubleClick, 00 Civ. 7194, 2:00-1559 (E.D.La) on September 22, 2000.

BACKGROUND3

DoubleClick, a Delaware corporation, is the largest provider of Internet advertising products and services in the world. Its Internet-based advertising network of over 11,000 Web publishers has enabled DoubleClick to become the market leader in delivering online advertising. DoubleClick specializes in collecting, compiling and analyzing information about Internet users through proprietary technologies and techniques, and using it to target online advertising. DoubleClick has placed billions of advertisements on its clients' behalf and its services reach the majority of Internet users in the United States.

THE INTERNET

Although a comprehensive description of the Internet is unnecessary to address the issues raised in this motion, a rudimentary grasp of its architecture and engineering is important.4 The Internet is accurately described as a "network of networks." Computer networks are interconnected individual computers that share information. Anytime two or more computer networks connect, they form an "internet." The "Internet" is a shorthand name for the vast collection of interconnected computer networks that evolved from the Advanced Research Projects Agency Network ("ARPANet") developed by the United States Defense Department in the 1960's and 1970's. Today, the Internet spans the globe and connects hundreds of thousands of independent networks.

The World Wide Web ("the Web" or "WWW") is often mistakenly referred to as the Internet. However, the two are quite different. The Internet is the physical infrastructure of the online world: the servers, computers, fiber-optic cables and routers through which data is shared online. The Web is data: a vast collection of documents containing text, visual images, audio clips and other information media that is accessed through the Internet. Computers known as "servers" store these documents and make them available over the Internet through "TCP/IP" (Transmission Control Protocol/Internet Protocol), a set of standard operating and transmission protocols that structure the Web's operation. Every document has a unique "URL" (Universal Resource Locator) that identifies its physical location in the Internet's infrastructure. Users access documents by sending request messages to the servers that store the documents. When a server receives a user's request (for example, for Lycos.com's home page), it prepares the document and then transmits the information back to the user.

The Internet utilizes a technology called "packet switching" to carry data. Packet switching works as follows. The computer wishing to send a document ("originating computer"), such as a music file or digital image, cuts the document up into many small "packets" of information. Each packet contains the Internet Protocol ("IP") address of the destination Web site, a small portion of data from the original document, and an indication of the data's place in the original document. The originating computer then sends all of the packets through its local network to an external "router." A router is a device that contains continuously-updated directories of Internet addresses called "routing tables." The router takes each packet from the original document and sends it to the next available router in the direction of the destination Web site. Because each router is connected to many other routers and because the connection between any two given routers may be congested with traffic at a given moment, packets from the same document are often sent to different routers. Each of these routers, in turn, repeats this process, forwarding each packet it receives to the next available router in the direction of the destination Web site. Collectively, this process is called "dynamic routing."

The result is that packets of information from the originating computer may take entirely different routes over the Internet (i.e., traveling over different routers and cables) to their ultimate destination. Obviously, the packets arrive out of their original order because some have been forced to take much longer or slower routes between the originating and destination computers.5 However, because each packet contains code that identifies its place in the original document, the destination computer is able to reassemble the original document from the disorganized packets. At that point, the destination computer sends a message back to the originating computer either reporting that it received the full message, or requesting that the originating computer re-send any packets that never arrived. This entire process typically occurs in a matter of seconds. Packet-switching technology and dynamic routing have helped to give the Internet's infrastructure its extraordinary efficiency and resiliency.

DOUBLECLICK'S TECHNOLOGY AND SERVICES

DoubleClick provides the Internet's largest advertising service. Commercial Web sites often rent-out online advertising "space" to other Web sites. In the simplest type of arrangement, the host Web site (e.g., Lycos.com) rents space on its webpages to another Web site (e.g., The-Globe.com) to place a "hotlink" banner advertisement6 ("banner advertisement"). When a user on the host Web site "clicks" on the banner advertisement, he is automatically connected to the advertiser's designated Web site.

DoubleClick acts as an intermediary between host Web sites and Web sites seeking to place banner advertisements. It promises client Web sites that it will place their banner advertisements in front of viewers who match their demographic target. For example, DoubleClick might try to place banner advertisements for a Web site that sells golfclubs in front of high-income people who follow golf and have a track record of making expensive online purchases. DoubleClick creates value for its customers in large part by building detailed profiles of Internet users7 and using them to target clients' advertisements.

DoubleClick compiles user profiles utilizing its proprietary technologies and analyses in cooperation with its affiliated Web sites. DoubleClick is affiliated with over 11,000 Web sites for which and on which it provides targeted banner advertisements. A select group of over 1,500 of these Web sites form the "DoubleClick Network" and are among "the most highly trafficked and branded sites on the Web." In addition, DoubleClick owns and operates two Web sites through which it also collects user data: (1) the Internet Address Finder ("IAF"); and (2) NetDeals.com.8

When users visit any of these DoubleClick-affiliated Web sites, a "cookie" is placed on their hard drives.9 Cookies are computer programs commonly used by Web sites to store useful information such as usernames, passwords, and preferences, making it easier for users to access Web pages in an efficient manner. However, Plaintiffs allege that DoubleClick's cookies collect "information that Web users, including plaintiffs and the Class, consider to be personal and private, such as names, e-mail addresses, home and business addresses, telephone numbers, searches performed on the Internet, Web pages or sites visited on the Internet and other communications and information that users would not ordinarily expect advertisers to be able to collect." Amended Complaint at ¶ 38. DoubleClick's cookies store this personal information on users' hard drives until DoubleClick electronically accesses the cookies and uploads the data.

How DoubleClick targets banner advertisements and utilizes cookies to collect user information is crucial to our analysis under the three statutes. Therefore, we examine both processes in greater detail.

A. Targeting Banner Advertisements

DoubleClick's advertising targeting process involves three participants and four steps. The three participants are: (1) the user; (2) the DoubleClick-affiliated Web...

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