FTC Settles With Online Marketer Over "History Sniffing"

The Federal Trade Commission ("FTC"), the chief federal agency for consumer protection, has announced a proposed settlement with online marketer Epic Marketplace, Inc., over what the Commission called a "deceptive" use of a technology called "history sniffing." According to the FTC's release:

Epic Marketplace is a large advertising network that has a presence 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, a practice known as online behavioral advertising.   
In its privacy policy, Epic claimed that it would collect information only about consumers’ visits to sites in its network.  However, according to the FTC, Epic was employing history-sniffing technology that allowed it to collect data about sites outside its network that consumers had visited, including sites relating to personal health conditions and finances. 
According to the FTC complaint, the history sniffing was deceptive and allowed Epic to determine whether a consumer had visited any of more than 54,000 domains, including pages relating to fertility issues, impotence, menopause, incontinence, disability insurance, credit repair, debt relief, and personal bankruptcy.

The technique used by Epic apparently combined two methods enabled by its cookie-placing network: seeing whether a user's browser program colored particular links to indicate they had been previously clicked, and accessing the cache (temporarily stored files) of the browser.

The proposed settlement order bars Epic from futher history sniffing, mandates full and accurate disclosure of Epic's information collection practices, and places restrictions and retention requirements on Epic's data collection and sharing. It does not, however, contain any financial penalties for Epic's conduct.