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Many courts have held that that information gathered by video-related pixels are not "personal" for purposes of the Video Privacy Protection Act. Nevertheless, plaintiff class action attorneys continue to file these VPPA actions in federal court.
This issue came up in a recent case against the National Basketball Association (Salazar v. NBA). The plaintiff argued that video-related pixels used by the NBA gathered personally identifiable information and sent it to third parties. The New York federal court, looking at the case on remand, disagreed. It held that the information gathered – lines of computer code – was not personal. In reaching its decision, the court relied on Second Circuit precedent (Solomon v. Flipps Media). Namely, that personal information is limited to what an ordinary person – as opposed to a sophisticated technology company – can use to identify someone.
Putting It Into Practice: This decision is helpful and good news for those who have video pixels on their sites. However, the ongoing litigation in this area is a reminder that to be prepared. Have a full picture of your site's tracking tools. This means more than just asking IT, as the tools may be placed by different internal teams or outside vendors. You will likely need a working relationship across many groups, not only IT, legal, and compliance.
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