Over the past several years, class action litigants have flooded federal dockets with Video Privacy Protection Act (VPPA) cases against companies that embed Facebook's Pixel tool on their websites. The plaintiffs have generally claimed that Pixel improperly tracks and relays information about consumers' video watching habits and that the transfer of such data to Facebook violates VPPA's data privacy protections.
The Second Circuit just turned the tide this month on that category of VPPA claims. In Solomon v. Flipps Media, Inc., the court held that an online video provider does not violate VPPA simply by disclosing PII if an “ordinary person” cannot readily identify a specific individual's video-watching behavior from the data disclosed. In other words, coded or encrypted data disclosures that are indecipherable by the average person—who lacks the same sophistication of the tech companies collecting the data—do not run afoul of the statute. By way of example, the mere disclosure of coded URLs and Facebook ID numbers, without a more direct link to a consumer's personal identity, is insufficient.
In adopting the “ordinary person” standard above, the Second Circuit notably joins the Third and Ninth Circuits (which apply a similar standard), while rejecting a more liberal “reasonable foreseeability” test used in the First Circuit.
The Solomon decision is a significant shift in favor of defendants in that the decision reinforces a more restrained interpretation of VPPA, after courts had previously expanded the statute's application to digital mediums that did not exist when the statute was first enacted. Congress had passed VPPA in 1988 to address limited privacy concerns (and really political concerns) after a newspaper disclosed one Supreme Court nominee's rental history from a local video store. The statute's enactment had nothing to do with online video content. The plain language of the statute itself focuses on the privacy of consumers who rent or purchase “video cassette tapes” or “similar audio visual materials” through a “video tape service provider.”
The Second Circuit thus provides a much-needed course correction, grounding the statute closer to its original purpose while acknowledging the realities of digital technology. Moving forward, future plaintiffs seeking to bring a VPPA action within the Second Circuit will face material hurdles if they cannot articulate how the defendant may have disclosed video-watching data that a lay person can understand.
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