Last week, the Second Circuit, in Solomon v. Flipps Media, Inc., joined the Third and Ninth Circuits in holding that "personally identifiable information" (PII) under the Video Privacy Protection Act (VPPA) is limited to information that would enable an ordinary person, without specialized knowledge or tools, to identify a consumer's video-viewing history.
In so ruling, the court specifically rejected the First Circuit's broader "reasonable foreseeability" standard, under which courts consider information to qualify as PII if it is reasonably likely to reveal a consumer's video history. By contrast, the "ordinary person" standard now adopted by the Second, Third, and Ninth Circuits requires that the information be readily understandable by an "ordinary" person as identifying a consumer's video activity.
Applying this test to the use of the Meta Pixel, the Second Circuit found that the Meta pixel, which transmits a Facebook ID (a numeric string that is associated with Facebook profiles of individuals who have public Facebook accounts) together with computer code that indicates video watched, does not qualify as PII under the VPPA, as an ordinary person would not be able to identify a specific individual or their video history from the information sent to Meta. For businesses using third-party analytics tools like the Meta Pixel, this decision provides greater clarity and some protection, at least in the Second Circuit. However, companies should remain attentive to evolving interpretations in other jurisdictions.
Key Takeaways
- The Second Circuit Court of Appeals has joined the Third and Ninth Circuits in holding that PII under the (VPPA) is limited to information that would enable an ordinary person, without specialized knowledge or tools, to identify a consumer's video-viewing history.
- The court further held that a Facebook ID, as transmitted by the Meta Pixel, does not constitute PII under the VPPA.
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