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Is Cookie Stuffing Illegal? Answer: “Wellll, Yes, But…”

Is Cookie Stuffing Illegal?
Affiliate Cookie Stuffing: Is it legal?

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

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

The Role Of Cookies In Affiliate Marketing

As an affiliate marketer, you find customers for businesses and products. The companies for whom you’re scouting measure your success via a unique affiliate ID number — which is usually attached to your links.

Merchants pay you commissions whenever visitors you’ve “introduced” to them complete a qualifying transaction. Those transactions can be anything from registering with the merchant’s website to creating an account, to subscribing to a newsletter, to making an actual purchase.

Since it may be days, or even months, before the close of a sale, the goal of every affiliate marketer should be to make sure their cookies are programmed to last. If more than one affiliate marketer’s cookies point to a merchant’s site, the most recent referral earns the commission.

How Cookie Stuffing Works

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

Popular Cookie Stuffing Techniques:

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

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

Is Cookie Stuffing Illegal in the UK?

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 singled out in the criminal law by name, the technique does fall under the general rubric of Internet fraud.

In February 2010, US federal authorities brought wire fraud charges — which carry a maximum fine 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 a clients, some of whom may have made as much as $10,000 a month.

The Most Infamous Cookie Stuffing Scandal

The most notorious cookie stuffing scandal of all time targeted eBay.

Meet Shawn Hogan. The brains behind black hat marketing site Digital Point, in 2006, Hogan was an affiliate marketing superstah. He was raking in close to one million dollars in commissions per month.

But people suspected that a portion of that income was generated through cookie stuffing and other marginally legitimate Internet advertising techniques. In 2008, eBay filed a civil suit against its one-time affiliate marketing poster child, charging that he defrauded them through demanding pay-outs in about 700,000 cookie stuffing transactions.

Two years later, in July 2010, Hogan was indicted by the FBI on fraud charges for his alleged involvement in the same scam. Unfortunately, all those legitimate affiliate marketers, whose legitimate 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 understand cookie legalities.

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