Tag: video privacy protection act

October 16, 2024 Privacy

Recent case applies VHS-era law to modern digital privacy

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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)

See also: Casual website visitor who watched videos was not protected under the Video Privacy Protection Act

April 9, 2015 Privacy

Casual website visitor who watched videos was not protected under the Video Privacy Protection Act

A recent federal court decision from the Southern District of New York sheds light on what is required to be considered a “consumer” who is protected under the Video Privacy Protection Act (VPPA). The court held that a website visitor who merely visited a website once in awhile to watch videos — without establishing a more “deliberate and durable” affiliation with the website — was not a “subscriber” to the website’s services and thus the VPPA did not prohibit the alleged disclosure of information about the website visitor’s viewing habits.

Defendant was a television network that maintains a website offering video clips and episodes of many of its television shows. The website also incorporated Facebook’s software development kit which, among other things, let visitors log into websites using their Facebook credentials. This mechanism relied on cookies. If a person had chosen to remain logged into Facebook by checking the “keep me logged in” button on Facebook’s homepage, the relevant cookie would continue to operate, regardless of what the user did with the web browser. Plaintiff alleged that this mechanism caused AMC to transmit information to Facebook about the video clips she watched on the AMC site.

Plaintiff sued under the VPPA. Defendant moved to dismiss, arguing that plaintiff lacked standing under the statute and that she was not a protected “consumer” as required by the statute.

The court found that plaintiff had standing. It rejected defendant’s argument that a VPPA plaintiff must allege some injury in addition to asserting that defendant had violated the statute. “It is true . . . that Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.” But Congress “can broaden the injuries that can support constitutional standing.”

The court next looked to whether plaintiff was a “consumer” protected under the statute. The VPPA defines the term “consumer” to include “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” Absent any assertion that plaintiff was a renter or purchaser of AMC’s goods, the parties and the court focused on whether she was a “subscriber” (a term not defined in the statute).

Because plaintiff’s allegations failed to establish a relationship with defendant sufficient to characterize her as a subscribers of defendant’s goods or services, the court dismissed the VPPA claim with leave to amend. It observed: “Conventionally, ‘subscription’ entails an exchange between subscriber and provider whereby the subscriber imparts money and/or personal information in order to receive a future and recurrent benefit, whether that benefit comprises, for instance, periodical magazines, club membership, cable services, or email updates.” In this case, “[s]uch casual consumption of web content, without any attempt to affiliate with or connect to the provider, exhibit[ed] none of the critical characteristics of ‘subscription’ and therefore [did] not suffice to render [plaintiff] a subscriber of [defendant’s] services.”

Austin-Spearman v. AMC Network Entertainment LLC, 2015 WL 1539052 (S.D.N.Y. April 7, 2015)

Evan Brown is an attorney in Chicago helping clients manage issues involving technology and new media.

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