Is Cookie Stuffing Illegal? “Well, Yes, But…”

Let’s talk about “cookies” — the digital kind — and “stuffing.” Is “cookie stuffing” illegal?

What’s cookie stuffing? It involves covertly “attaching” tracking cookies to users. Mostly used by affiliate marketers, the stuffed cookies mask the true origin of an incoming online buyer. In the vast majority of cases, cookies are planted without consent or knowledge.

The Role Of Cookies In Affiliate Marketing

Affiliate marketers are consumer bounty hunters, and companies typically track their achievements via a unique ID number.

Merchants pay affiliates commissions whenever visitors they’ve funneled to a given Web page complete a qualifying transaction. Those transactions can be anything from registering with the dealer’s website to making an actual purchase.

Since it may be days, or even months, between the time a person first visits a site and completion of the desired action, affiliate marketers care a lot about sticky ID trackers. This concern spawned “cookie stuffing.”

How Cookie Stuffing Works

Cookie stuffers hurt affiliate marketers by overwriting legitimate affiliate cookies, destroying marketers’ ability to qualify transactions. You could say that cookie stuffers hijack other affiliates’ links.

Popular Cookie Stuffing Techniques:

  1. Embedding a cookie in an image posted in a forum.
  2. Placing cookies in pop-ups, iFrames, javascript, and Flash.

Because stuffed cookies usually carry a very recent time stamp, they supersede legitimate affiliate marketing cookies. Often, several fraudulent cookies will be planted at once to increase the odds of hijacking success.

In the UK, websites must conspicuously “ask” users’ permission before generating a “cookie.” It’s a hard and strict rule — one that even U.S.-based websites must observe if the site “targets” or welcomes business from people in the UK.

Is Cookie Stuffing Illegal?

While cookie stuffing may not be referenced in the law books by name, the technique does fall under the rubric of Internet fraud.

In February 2010, US federal authorities brought wire fraud charges — which carry a maximum penalty of $250K and five years in prison — against Christopher Kennedy, creator of a popular cookie stuffing program called Saucekit. Though Kennedy swears he never stuffed cookies for his own profit, he licensed his software for $450 a month to clients, some of whom may have made as much as $10,000 a month.

An Infamous Cookie Stuffing Scandal

A notorious cookie stuffing scandal targeted eBay.

Meet Shawn Hogan, the brains behind black hat marketing site Digital Point. In 2006, Hogan was an affiliate marketing superstah, raking in close to one million dollars a month.

But people suspected that portion of the profits was generated through cookie stuffing and other marginally legitimate techniques. In 2008, eBay filed a civil suit against its one-time affiliate marketing poster child, alleging fraud.

Two years later, in July 2010, the FBI indicted Hogan on fraud charges for his alleged involvement in the same scam. Unfortunately, all those legitimate affiliate marketers, whose cookies were over-written by the stuffed cookies, have no legal recourse.

Is your cookie stuffing illegal? For more information on the law as it relates to online marketing techniques, contact an Internet lawyer who understands cookie legalities.

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