video – Attorney Evan Brown

October 16, 2024 Privacy

Recent case applies VHS-era law to modern digital privacy

vhs

Plaintiff sued the NBA, accusing it of violating the Video Privacy Protection Act, 18 U.S.C. 2701 (VPPA). Plaintiff claimed that after signing up for the NBA’s online newsletter and watching videos on NBA.com, the NBA shared his viewing history with Meta without his permission. The district court dismissed the case and plaintiff sought review with the Second Circuit. On review, the court vacated and remanded the case for further proceedings.

What is the VPPA?

The VPPA, enacted in 1988, aims to protect consumers’ privacy by restricting video tape service providers from sharing personally identifiable information without consent. The historical circumstances around its enactment, particularly involving Robert Bork, is worth taking a few minutes to read up on.

Key issue – what’s a consumer here?

Plaintiff argued that he qualified as a “consumer” under the VPPA’s definition, which includes any “renter, purchaser, or subscriber of goods or services.” He contended that by providing his email and other personal data in exchange for the NBA’s newsletter, he became a “subscriber,” thus entitling him to privacy protections. According to plaintiff, the NBA’s practice of embedding a “Facebook Pixel” on its website allowed Meta to track users’ video-watching behavior, which constituted a violation of the VPPA’s restrictions.

The NBA, however, argued that plaintiff did not meet the VPPA’s criteria for a “consumer” because the newsletter subscription did not involve any audiovisual services, as required under the law. The NBA further asserted that plaintiff did not suffer a “concrete” injury, a requirement for Article III standing under the standards set out by SCOTUS in TransUnion LLC v. Ramirez. The NBA maintained that merely signing up for a free newsletter did not establish a sufficient relationship to qualify as a “subscriber.”

Lower court proceedings

The United States District Court for the Southern District of New York ruled in favor of the NBA. While it determined that plaintiff had standing to sue, the court dismissed the case on the grounds that plaintiff failed to establish that he was a “consumer” as defined by the VPPA. The court ruled that the VPPA’s scope was limited to audiovisual goods or services, and an online newsletter did not fit this definition. It concluded that merely signing up for a newsletter did not create a relationship that would extend VPPA protections to plaintiff’s video-watching data.

But the appellate court said…

Plaintiff appealed the decision, and the Second Circuit found that plaintiff sufficiently alleged that he was a “subscriber of goods or services” because he provided personal information in exchange for the NBA’s online newsletter. The court emphasized that the VPPA’s language did not strictly limit “goods or services” to audiovisual content, thus broadening the potential scope of who could be considered a “consumer.” This meant that the case would proceed to further legal proceedings to address the other issues in the dispute.

Three reasons why this case matters:

It clarifies modern VPPA applications: The case explores how the VPPA, with its origins in a VHS-centric era, applies to modern digital interactions, like email newsletters and online video streaming.
It expands consumer privacy definitions: The court’s interpretation suggests that a “subscriber” could include individuals who exchange personal information for non-monetary services, influencing other privacy claims.
It influences digital business practices: It affects how businesses should collect and share user data, potentially increasing scrutiny over partnerships involving data tracking and disclosure to third parties such Meta.

Salazar v. NBA, — F.4th —, 2024 WL 4487971 (2nd Cir., October 15, 2024)

March 19, 2024 Right of Publicity

Months long video surveillance of house did not violate the Fourth Amendment

video surveillance fourth amendment

“As video cameras proliferate throughout society, regrettably, the reasonable expectation of privacy from filming is diminished.”

Defendant was convicted of stealing government funds and of wire fraud for receiving disability benefits provided to veterans when in fact defendant – though being a veteran – was not disabled. Part of the evidence the government used against defendant was video footage obtained from a pole camera the government had set up on the roof of a school across the street from defendant’s home. It surveilled his house for 15 hours a day for 68 days. After being convicted, defendant sought review with the Tenth Circuit Court of Appeals, arguing that the near-continual surveillance of his house was an unreasonable search under the Fourth Amendment. The court disagreed and affirmed the conviction.

The development of a reasonable expectation of privacy

The court observed the importance of the notion of a citizen’s “reasonable expectation of privacy,” a concept that has evolved over time from its original ties to common-law trespass to encompass a broader range of privacy expectations recognized by society as legitimate.

Historically, the Supreme Court has maintained that activities exposed to public view do not enjoy a reasonable expectation of privacy. For example, in California v. Ciraolo, 476 U.S. 207 (1986), the court held warrantless observation of a home’s exterior from public airspace was not a Fourth Amendment violation on the grounds that these observations did not penetrate private, concealed areas.

In Kyllo v. United States, 533 U.S. 27 (2001), the court held that the use of thermal imaging to discern details within a home, unobservable to the naked eye, was a search requiring a warrant. This marked a departure towards acknowledging privacy infringements facilitated by technology not widely available to the public.

In United States v. Jackson, 213 F. 3d 1269 (10th Cir. 2000) the Tenth Circuit held that video surveillance capturing activity visible without enhancement did not violate the Fourth Amendment. The court grounded its decision in the principle that what one knowingly exposes to public observation falls outside the Fourth Amendment’s protection. The surveillance in question, similar to the one in this case involved recording the exterior of a residence, capturing scenes observable from public vantage points, thus not constituting a search under the Fourth Amendment.

But in this case, the surveillance was constant

In this case, defendant relied heavily on the case of Carpenter v. United States, 138 S. Ct. 2206 (2018), where the Supreme Court ruled that accessing historical cell-site location information constituted a search under the Fourth Amendment. This decision underscored the intrusive potential of prolonged surveillance, highlighting the significant privacy concerns associated with compiling a comprehensive record of an individual’s movements over time. But the court in this case observed that the scope of the Carpenter case scope was explicitly narrow, not extending to conventional surveillance methods such as security cameras.

So the court distinguished the present situation from Carpenter, noting that the pole camera only captured what was visible from the street and did not provide a comprehensive record of defendant’s movements beyond the monitored location. Accordingly, in the court’s view, the surveillance did not infringe upon the reasonable expectation of privacy as articulated in Carpenter, which pertained to the aggregate of an individual’s movements over an extended period.

More technology = changing norms regarding privacy

Furthermore (in probably the most intriguing part of the opinion), the court noted the evolving societal norms around privacy, especially in the context of the widespread proliferation of cameras in public and private spheres. This ubiquity of video recording technology, coupled with the societal acclimatization to being recorded, has inevitably influenced expectations of privacy. As surveillance technologies become more integrated into everyday life, the threshold for what constitutes a “reasonable expectation of privacy” shifts, reflecting the dynamic interplay between technological advancements and societal norms.

So the court concluded that defendant did not have a reasonable expectation of privacy concerning the footage captured by the pole camera, as it only recorded what was visible to any passerby from the street.

United States v. Hay, — F.4th — 2024 WL 1163349 (10th Cir., March 19, 2024)

See also:

April 5, 2020 Contracts

Influencer agreements: what needs to be in them

If you are a social media influencer, or are a brand looking to engage an influencer, you may need to enter into an influencer agreement. Here are five key things that should be in the contract between the influencer and the brand:

Obligations
Payment
Content ownership
Publicity rights
Endorsement guidelines compliance

Obligations under the influencer agreement.

The main thing that a brand wants from an influencer is for the influencer to say certain things about the brand’s products, in a certain way, and at certain times. What kind of content? Photos? Video? Which platforms? What hashtags? When? How many posts? The agreement should spell all these things out.

Payment.

Influencers are compensated in a number of ways. In addition to getting free products, they may be paid a flat fee upfront or from time to time. And it’s also common too see a revenue share arrangement. That is, the influencer will get a certain percentage based on sales of the products she is endorsing. These may be tracked by a promo code. The contract should identify all these amounts and percentages, and the timing for payment.

So what about content ownership?

The main work of an influencer is to generate content. This could be pictures posted to Instagram, tweets, or video posted to her story. All that content is covered by copyright. Unless the contract says otherwise, the influencer will own the copyright. If the brand wants to do more with that content outside of social media, that needs to be addressed in the influencer agreement.

And then there are rights of publicity.

Individuals have the right to determine how their image and name are used for commercial purposes. If the brand is going to feature the influencer on the brand’s own platform, then there needs to be language that specifies the limits on that use. That’s key to an influencer who wants to control her personal brand and reputation.

Finally, endorsement guidelines and the influencer agreement.

The federal government wants to make sure the consuming public gets clear information about products. So there are guidelines that influencers have to follow. You have to know what these guidelines are to stay out of trouble. And the contract should address what happens if these guidelines aren’t followed.

About the author: Evan Brown is an attorney helping individuals and businesses with a wide variety of agreements involving social media, intellectual property and technology. Call him at (630) 362-7237 or send email to ebrown@internetcases.com.

March 1, 2011 Computer Crime

Decision suggests that sexting by minors would violate federal child porn laws

Clark v. Roccanova, 2011 WL 665621 (E.D. Ky. February 14, 2011)

Is there a violation of the federal laws against child pornography when the accused himself is a minor? A Kentucky federal court says yes.

Three 14-year-old boys allegedly “coerced, enticed and persuaded” a 14-year-old girl to make a sexually explicit video. Later the three boys transmitted the video over the internet. The girl filed a civil suit against the boys for violations of 18 USC §§2251 and 2252.

The defendants moved to dismiss, arguing that the statutes covered only the conduct of adults. The court rejected that argument. It found that nothing in the plain language of the statutes, nor in the legislative history, supported such an interpretation.

Both statutes prohibit creation, possession and transmission of child pornography by any “person.” While “person” is not defined in 18 U.S.C. §2256, the statute’s definition of “identifiable minor” begins by stating that a minor is a “person.” 18 U.S.C. § 2256(9)(A). The court found that indicates that “person” is meant to refer to an individual of any age, not just an adult.