FTC Settles Epic History Sniffing Case

The Federal Trade Commission (“FTC”) has announced a settlement with a global digital marketing company that bars the company from engaging in a practice known as “history sniffing” and to destroy all data collected through use of the technique. The FTC settlement order bars the company, Epic Marketplace, Inc., and Epic Media Group, LLC, from continuing to use history sniffing technology, which allows online operators to “sniff” a browser to see what sites consumers have visited in the past. The FTC complaint alleged that Epic secretly and illegally gathered data from millions of consumers about their interest in sensitive medical and financial issues ranging from fertility and incontinence to debt relief and personal bankruptcy. Epic Marketplace, Inc. is an advertising network present on 45,000 websites. Consumers, who visited any of the network's sites, received a cookie, which stored information about their online practices, including sites they visited and the ads they viewed. The cookies allowed Epic to serve consumers ads targeted to their interests. So far so good. Browser history sniffing works by taking advantage of the part of the HTML code that allows sites to display links a user has previously visited by changing colors. History sniffers exploit this functionality. In Epic’s case, the company examined the browser history for more than 54,000 of URLs that the site has no intention of delivering to the user. Further, history sniffing bypasses most measures available to limit or prevent online tracking, such as deleting cookies. The technique also allows advertisers to detect consumers’ visits to websites outside their own advertising network, data not normally available through use of standard cookie-based technologies. Not so good.