Recent Developments In Video Privacy Protection Act Litigation

Introduction

Within a two-day span, three different U.S. District Courts issued opinions that highlighted the increasing use of the Video Privacy Protection Act¹ (VPPA) to challenge websites’ use of tracking pixels. These cases reached different results for different reasons, indicative of the circuit split in how the VPPA is being interpreted and applied to tracking pixel technology.

The VPPA imposes liability when a “video tape service provider . . . knowingly discloses, to any person, personally identifiable information concerning any consumer . . .” In that circumstance, the provider shall be liable to the aggrieved person² for “actual damages but not less than liquidated damages in an amount of $2,500,”³punitive damages,⁴attorneys’ fees and costs,⁵and other preliminary and equitable relief deemed appropriate by the court.⁶Differences have arisen in how courts interpret the phrases “video tape service provider,” “consumer of such provider,” and whether personally identifiable information (PII) was disclosed. Under the statute, PII is defined as “personally identifiable information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.”⁷“To plead a plausible claim under the VPPA, ‘a plaintiff must allege that (1) a defendant is a video tape service provider, (2) the defendant disclosed personally identifiable information concerning any customer to any person, (3) the disclosure was made knowingly, and (4) the disclosure was not authorized by [18 U.S.C. §] 2710(b)(2).’”⁸

How Tracking Pixels Generally Work

A tracking pixel allows identifying information about a user to be sent back to the tracking pixel’s creator when the user visits a website where the tracking pixel is placed. A tracking pixel is hosted on a remote server and is embedded into a website, email, or advertisement⁹via a small segment of code that loads functions that a website owner can use to track visitor activity on the website.¹⁰A tracking pixel, used in connection with a browser cookie, can help match website visitors with other accounts, such as a Facebook User account.¹¹When a website owner wants to track user actions on a webpage, it is common practice to install the tracking pixel by adding the relevant code segment between the opening and closing (head) HTML tags on a page.¹²

Actions tracked by a pixel include which pages are loaded by a user,¹³which buttons on a page are clicked,¹⁴how much of the web page was viewed,¹⁵or how long an embedded video was played.¹⁶The events tracked by each web pixel may differ; i.e., not all web pixels permit tracking of the same information.

Banks v. CoStar Realty Information, Inc.¹⁷

Plaintiff Banks viewed prerecorded video tours on the apartments.com website (operated by CoStar) and alleged that its use of tracking pixels disclosed his personal information to third parties in violation of the VPPA.¹⁸

Two key issues were in contention in this case: the definition and application of the terms “video tape service provider” and “consumer” under the VPPA. The Court held that CoStar was “not a ‘video tape service provider’ under the VPPA” and found that “[t]he plain language of Section 2710(a)(4) requires that a ‘video tape service provider’ is ‘in the business . . . of rental, sale, or delivery of’ not just any sort of video medium, but specifically ‘prerecorded video cassette tapes or similar audio visual materials.’”¹⁹

At the time of the VPPA’s enactment in 1988, physical media, like videotapes, were the only contemplated form of communicating videos. The Court focused its analysis on the phrase “prerecorded video cassette tapes or similar audio visual materials,” finding that the videos on the apartments.com web site “are not comparable to prerecorded video cassette tapes beyond their being audio visual materials.”²⁰“Video clips transferred via the internet have little in common with a physical medium like a video cassette, particularly in the context of the VPPA.”²¹ The World Wide Web was not publicly available until 1993 and therefore could not have been considered by Congress when drafting the VPPA. After further analysis of CoStar’s business, the Court also held that “[t]he prerecorded videos that CoStar delivers are in service of its business, but that does not render CoStar ‘in the business’ of delivering them.”²²

The Court further held that Banks was “not a ‘consumer’ under the VPPA” because its earlier determination that CoStar was not a “video tape service provider” was dispositive of that issue. Having concluded that CoStar fell outside the statute’s coverage, the Court reasoned that Banks could not qualify as a consumer as a matter of law.

In rejecting Banks’s argument that because he was a subscriber to apartments.com, he was also a consumer under the VPPA, the Court distinguished the Second Circuit decision in Salazar.²³ They emphasized that the Second Circuit “ignore[d] the very title of the statute: ‘Wrongful disclosure of video tape rental or sale records[.]’”²⁴ The Court preferred the reasoning of the D.C. Circuit in Pileggi, which held that “the noun ‘video’ suffuses the statute, independently indicating that the relevant good that a consumer subscribes to must be a video, not just any good or service provided by someone who also happens to offer video or audio-visual services.”²⁵

The Court also addressed a separate circuit split concerning whether a video tape service provider has disclosed a consumer’s PII.²⁶ The First Circuit has adopted the “reasonable foreseeability” standard, while the Second, Third, and Ninth Circuits have adopted the “ordinary person” standard.²⁷ The Banks Court declined to adopt either test, holding that “both are unnecessary” under the facts alleged.²⁸ Specifically, Banks failed to allege what information the pixel conveyed or that it identified him.²⁹ Because Banks did not allege that the pixel identified his activity on apartments.com, the Court held that Banks “merely establishe[d] a connection to a Facebook account that may or may not contain information identifying Plaintiff,”³⁰ which was insufficient to plead disclosure under the VPPA.

Cole v. LinkedIn Corp.³¹

Plaintiff Cole had a LinkedIn Premium subscription that she used to watch videos on LinkedIn. She alleged that LinkedIn used the Facebook pixel to transmit her personally identifiable information to third parties in violation of the VPPA.³²

LinkedIn filed a motion to dismiss, arguing that Cole’s complaint failed to state a VPPA claim “because (1) LinkedIn is not a ‘video tape service provider’ covered by the VPPA; (2) Cole is not a ‘consumer’ within the meaning of the VPPA; (3) LinkedIn did not disclose ‘personally identifiable information’; and (4) any disclosure by LinkedIn was not knowing.”³³

The Court denied the motion and held that the complaint plausibly alleged the elements of a VPPA claim. The Court held that LinkedIn is a “video tape service provider” under the VPPA because “video production need not be a video tape service provider’s ‘overarching focus or particular field of endeavor.’”³⁴ A complaint states a plausible VPPA claim where “it alleges that the defendant regularly delivers video content to users and maintains a cache of such content, even if the defendant also offers other services.”³⁵

The Court further held that Cole is a “consumer” under the VPPA, observing that “Courts generally agree that the ordinary meaning of subscriber connotes some sort of ongoing commitment or relationship between the user and the entity.”³⁶The Court held “that Cole used her paid subscription to watch video content to which she would have otherwise lacked access. The complaint therefore pleads a sufficient nexus between Cole’s subscription and the video content.”³⁷

The Court articulated an ordinary person standard for PII under the VPPA, stating that “personally identifiable information is ‘that information that would ‘readily permit an ordinary person to identify a specific individual’s video-watching behavior.’”³⁸ In the Ninth Circuit, “plaintiffs state plausible VPPA claims where, as here, they allege that defendants disclose video information and users’ Facebook IDs.”³⁹ The Court held that because LinkedIn installed the Facebook pixel onto its website, “Cole has plausibly alleged that LinkedIn disclosed her personally identifiable information by transmitting the URLs of videos Cole watched on LinkedIn Learning ‘along with’ her Facebook ID, which together would ‘readily permit an ordinary person to identify [Cole]’s video-watching behavior.’”⁴⁰

The Court disagreed with LinkedIn’s position that any disclosure was not known by LinkedIn because “[c]ourts in this circuit consistently hold that a VPPA plaintiff adequately pleads scienter by alleging that a defendant ‘knowingly installed the . . . Pixel knowing that it transmits’ users’ personally identifiable information.”⁴¹

Chandra v. Prager Univ. Foundation⁴²

Plaintiffs Chandra and Browne alleged that their video viewing history on Defendant Prager’s website, as well as their personally identifiable information, was sent to third parties through the Facebook pixel.⁴³ Prager filed a motion to dismiss for failure to state a claim under the VPPA but did not dispute that it is a “video tape service provider” under the VPPA. The issues before the Court were whether the plaintiffs were “subscribers” under the VPPA and whether PII under the VPPA was disclosed via the pixel.

The Court noted that there is a circuit split on this issue; specifically, “whether a consumer must be subscribed specifically to audiovisual content, or if the consumer can be subscribed to any goods or services provided by the video tape service provider, regardless of whether those goods and services are audiovisual in nature.”⁴⁴ The Court identified the positions in the Second, Sixth, Seventh, and D.C. Circuits while also noting that the Ninth Circuit, as of the date of the opinion, had not resolved this question.

The Court adopted the reasoning used by the Second and Seventh Circuits. “The plain language of the statute does not limit the phrase ‘goods or services’ to those that are audiovisual in nature. See 18 U.S.C. § 2710(a)(1). Indeed, there is no qualifier limiting what kind of goods or services need to be exchanged.”⁴⁵ In holding that the plaintiffs are subscribers under the VPPA, the Court held

[T]here is no requirement that, in order to be a subscriber, a person must subscribe to audiovisual materials specifically. It is sufficient that a person enters into an ongoing relationship or commitment with the video tape service provider, such as by providing valuable information in exchange for access to certain goods or services, regardless of whether those goods or services are audiovisual in nature.⁴⁶

Relating to the transmission of PII, the Court held that The Ninth Circuit has adopted an “ordinary person” test to determine what information satisfies the statutory definition of PII. . . .… Under the ordinary person test, PII “means only that information that would ‘readily permit an ordinary person to identify a specific individual’s video-watching behavior.’” . . . . To adequately plead a disclosure of PII under the VPPA, a plaintiff must allege that the defendant disclosed to a third party “1) a consumer’s identity; 2) the identity of specific video materials; and 3) the fact that the person identified requested or obtained that material.”⁴⁷

The Court identified another circuit split relating to whether the combination of tracking pixel information and video viewing histories satisfied the ordinary person test. In this case, the Court did not select a test to use and held that the complaint did not adequately plead whether Prager disclosed PII, “because even assuming that [Facebook IDs] and viewing histories together constitute PII, Plaintiffs have not alleged that their specific PII was disclosed.”⁴⁸ “[B]ecause Plaintiffs allege that this data was maintained by Facebook, not Defendant . . . [i]t is not plausible that Defendant could disclose PII that it does itself maintain.”⁴⁹

The Circuit Split Issues

As illustrated by these three cases, there are circuit splits on:

1. Who qualifies as a “video tape service provider” under the VPPA;
2. Who qualifies as a “consumer” under the VPPA, which is pending consideration by the Supreme Court in Salazar v. Paramount Global, dba 247Sports⁵⁰ at the time of writing, including whether a consumer must be subscribed specifically to audiovisual content or can be subscribed to any goods or services provided by a website;
3. What constitutes a disclosure of a consumer’s PII (the “reasonably foreseeable” standard or the “ordinary person test”).

Footnotes

1. 18 U.S.C. § 2710.

2. 18 U.S.C. § 2710(b)(1).

3. 18 U.S.C. § 2710(c)(2)(A).

4. 18 U.S.C. § 2710(c)(2)(B).

5. 18 U.S.C. § 2710(c)(2)(C).

6. 18 U.S.C. § 2710(c)(2)(D).

7. 18 U.S.C. § 2710(a)(3).

8. Chandra v. Prager Univ. Found., 2025 U.S. Dist. LEXIS 216657 at 3 (C.D. Cal., October 21, 2025).

9. See https://mailchimp.com/resources/pixel-tracking/.

10. See https://developers.facebook.com/docs/meta-pixel/.

11. See https://developers.facebook.com/docs/meta-pixel/get-started.

12. See https://usercentrics.com/guides/marketing-measurement/tracking-pixels/#how-to-create-a-tracking-pixel-6

13. See https://support.google.com/analytics/answer/9234069?hl=en

14. Id.

15. See https://support.google.com/analytics/answer/9216061

16. Id.

17. 2025 U.S. Dist. LEXIS 206003 (E.D. Mo., October 20, 2025).

18. Id. at *1-2.

19. Id. at *5-6.

20. Id. at *8-9.

21. Id. at *9.

22. Id. at *10-11.

23.  Salazar v. Nat’l Basketball Ass’n, 118 F.4th 533 (2d Cir. 2024).

24. 2025 U.S. Dist. LEXIS 206003 at *14.

25. Id. at *15, citing Pileggi v. Wash. Newspaper Publ’g Co., LLC, 146 F.4th 1219, 1233 (D.C. Cir. 2025).

26. Id. at *16.

27. Id. at footnote 5, collecting cases.

28. Id. at *16.

29. Id.

30. Id. at *17.

31. 807 F.Supp.3d 859 (N.D. Cal., October 20, 2025).

32. Id. at 961-962.

33. Id. at 963-964.

34. Id. at 964.

35. Id. at 965.

36. Id. at 965 (internal quotations and citations omitted).

37. Id. at 966.

38. Id. (citation omitted).

39. Id. at 967. (citation omitted).

40. Id. at 968. (citation omitted).

41. Id. at 968-969 (citations omitted).

42. 2025 U.S. Dist. LEXIS 216657 (C.D. Cal., October 21, 2025).

43. Id. at *2.

44. Id. at *5 (citations omitted).

45. Id. at *6.

46. Id. at *6-7 (citations omitted).

47. Id. at *9-10 (internal citations omitted).

48. Id. at *11.

49. Id. at *13.

50. 133 F.4^th642 (6^thCir. 2025) (cert. granted).

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