United States: Ninth Circuit Weighs In On Scope of Identifiable Information under VPPA

On November 29, 2017, the Ninth Circuit added to an existing circuit split that has emerged regarding the definition of "personally identifiable information" under the  Video Privacy Protection Act (VPPA). The Ninth Circuit affirmed the dismissal of a class action after construing the term to include only information that enables an "ordinary person" to identify an individual. Eichenberger v. ESPN, Inc., No. 15-35449, 2017 WL 5762817 (9th Cir. Nov. 29, 2017). This interpretation puts the Ninth Circuit at odds with the First Circuit, which last year adopted a more expansive definition of "personally identifiable information" that potentially extends the reach of the VPPA to far more online tracking activity. (Our Alert on the First Circuit's decision is here.) While the Ninth Circuit's Eichenberger decision is helpful for online actors concerned about the potential for class actions and large-scale statutory damages under the VPPA, the circuit split underscores the ambiguity in the VPPA, and online actors should not necessarily view the Ninth Circuit's decision as a green light or the last word. In addition, and potentially just as challenging, the VPPA remains only part of the overlapping and increasingly complex regulatory environment for online tracking, including developments at the Federal Trade Commission and in the European Union's upcoming General Data Protection Regulation (GDPR) and ePrivacy Regulation.

The VPPA prohibits "video tape service provider[s]" from knowingly disclosing "personally identifiable information concerning any consumer" without a particularly onerous form of consent. 18 U.S.C. § 2710(b)(1)-(2) (emphasis added). "[P]ersonally identifiable information" in turn "includes information which identifies a person as having requested or obtained specific video materials or services." § 2710(a)(1). While the VPPA was originally passed in 1988 to address disclosure of video rental history by brick-and-mortar video rental stores, it has become increasingly attractive to plaintiffs' lawyers and others objecting to video data-sharing practices because of its damages provisions. A court may award damages to any person aggrieved by a violation of the Act, that are "not less than liquidated damages in an amount of $2,500" in addition to punitive damages and attorneys' fees.  18 U.S.C. § 2710(c)(2). And those circuit courts that have considered the question, including the Ninth Circuit here, have held that a violation of the VPPA's substantive provisions is itself sufficient for Article III standing. 

Courts have struggled with defining "personally identifiable information" for purposes of the VPPA. Last year, in Yershov v. Gannett Satellite Info. Network, Inc., 82 F.3d 482 (1st Cir. 2016), the First Circuit held that mobile device GPS data constituted "personally identifiable information" when that information was disclosed to Adobe for analytics and marketing because the data was "reasonably and foreseeably likely" to identify the user. Id. at 486 (emphasis added). A Third Circuit decision following Yershov took a narrower approach to analogous data, finding that an IP address, browser settings, and device ID were not "personally identifiable information" when disclosed to a marketing and analytics provider because that information would not "permit an ordinary person to identify" a specific individual. In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 290 (3d Cir. 2016) (cert. denied).

In the Ninth Circuit's recent Eichenberger decision, the court considered whether a Roku device identifier in conjunction with a user's video viewing history was "personally identifiable information" under the VPPA. The court examined the approaches taken by the First and Third circuits, and adopted the Third Circuit's narrower construction of "personally identifiable information," holding that it means information that would "permit an ordinary person" to identify an individual. Although rejecting the First Circuit test, the Ninth Circuit attempted to reconcile its holding with that of the First Circuit, suggesting that geolocation data may be identifiable to an ordinary person.

The distinction between the two tests is that the "ordinary person" test is a narrower, objective test – it does not rely on the recipient's capabilities. By contrast, the "reasonably and foreseeably likely" test is contextual. Applying the latter, the First Circuit accounted for the capability of Adobe to combine the disclosed data with other data in a way that may have allowed Adobe to identify the plaintiff. Under the "ordinary person" test, these capabilities and other data sources are irrelevant to whether information is personally identifiable. While the Third and Ninth circuits' adoption of the narrower approach presents a potential hurdle for plaintiffs in those circuits, the risk of litigation remains heightened in the First Circuit, which has adopted the broader test, and in the other circuits that have not addressed the issue.

Other sources of risk in this area remain as well. For instance, the FTC has in several enforcement actions and other statements indicated that it takes a more expansive view of what information is considered personally identifying or sensitive information about individuals. That information, according to the FTC, can include device identifiers and analogous data. Last year, for instance, the FTC and the New Jersey Attorney General's joint enforcement action against Vizio included allegations that Vizio shared consumers' video viewing habits, and that device identifiers and IP addresses rendered that information personally identifiable. The complaint referred to this data as "sensitive television viewing activity" and alleged that the sharing of such information without consent was both an unfair and deceptive trade practice. Vizio did not challenge the FTC's untested assertion, and the action resulted in a $2.2 million settlement. The FTC has also issued a cross-device tracking staff report, recommending transparency, choice, and consent in similar contexts.

The "ordinary person" test adopted by the Third and Ninth circuits also diverges from the meaning of "personal data" under the GDPR, which requires consideration of "all the means reasonably likely to be used . . . by the controller or by another person to identify the natural person directly or indirectly." GDPR, Recital 26 (emphasis added). Thus, structuring data collection and sharing arrangements in the video context likely will remain a complex affair for companies operating internationally.

The potential for statutory penalties available under GDPR, the burdensome nature of the remedies sought by the FTC (compliance programs, monitoring and in some cases monetary relief), and the availability of statutory damages under the VPPA underscore the value of proactively assessing and mitigating risk in advance, ideally with the assistance of counsel familiar with this area of the law. And, in the face of a class action or regulatory investigation, companies should engage counsel familiar with privacy and data security concerns broadly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions