The FTC has announced a settlement with Epic Marketplace, a global digital marketing company, that bars Epic from engaging in a practice known as “history sniffing” and to destroy all data collected through use of the technique.  History sniffing involves using code embedded in web site advertisements to detect whether a consumer had previously visited particular web pages, based on how the web browser displays links to those web pages.  For example, most web browsers change the color of links that have been previously visited.  This color change is part of the HTML code used to display the site in the consumers browser, and was detected through code included in Epic’s history sniffing ads.  

History sniffing is disfavored by the FTC because it bypasses most measures consumers can use 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.   

The FTC’s complaint alleged that Epic misled consumers because the privacy policy on Epic’s website detailed tracking techniques that Epic used in its ad network but failed to disclose the use of history sniffing.  This failure to disclose was, according to the FTC, a deceptive practice under § 5 of the FTC Act.  

Notably, the FTC did not allege that the practice of history sniffing was unfair under § 5, which may imply that the FTC does not consider history sniffing to be per se unfair to consumers.  However, the Epic settlement reiterates that the FTC does     failure to adequately disclose tracking practices to violate § 5 through misrepresentation by omission.  The FTC’s agreement with Epic serves as one more reminder that advertisers and other web sites should take care to clearly explain privacy practices, especially how data is collected from consumers.