Mount v. PulsePoint, Inc.

Apple developed an internet browser called Safari that had a default privacy setting that blocked tracking cookies from third parties. Unlike first parties, which were websites directly visited by consumers, third parties had no direct contact with consumers. PulsePoint, Inc. (defendant) was a third-party advertising company that served internet ads to consumers on first-party websites visited by the consumers. Advertisers paid PulsePoint more money if PulsePoint could serve specific ads to consumers based on their internet histories. To gather consumer internet-browsing data, PulsePoint placed third-party tracking cookies on consumer computers and other devices. PulsePoint then sold the data to advertisers. Because Safari’s default settings blocked third-party tracking cookies, PulsePoint used a workaround to bypass Safari’s default setting. Brian Mount and Thomas Naiman (collectively, the Safari users) (plaintiffs) used Safari with its default privacy settings. After learning of PulsePoint’s actions, the Safari users filed a lawsuit against PulsePoint in federal district court, alleging that PulsePoint violated the Computer Fraud and Abuse Act and New York law, including the New York’s unfair or deceptive acts or practices statute and tort law, by bypassing Safari’s default settings and installing third-party tracking cookies on consumer devices. The Safari users claimed that PulsePoint’s tracking cookies affected the performance of their devices, violated their privacy, and allowed PulsePoint to unfairly profit from their personal data. However, the Safari users did not present evidence of specific effects on the performance of their devices or any injuries based on the monetization of their data. PulsePoint filed a motion to dismiss the Safari users’ claims, arguing that the Safari users had not alleged sufficient harm to bring their claims.