2nd Circuit Rules VPPA Requires 'Ordinary Person' Standard, Can't Account for Advanced Tech
An appeals court narrowed liability under the Video Privacy Protection Act (VPPA) Thursday, ruling it only applied to the disclosure of information that would allow an ordinary person to learn a specific individual's video-watching history.
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In case 23-7597, the information sent to Facebook -- allegedly unlawfully -- was a sequence of characters and numbers that could have identified the plaintiff's Facebook ID, as well as the title and URL of the video she watched, if correctly interpreted. The 2nd U.S. Circuit Court of Appeals found that the average person would not have been able to identify the plaintiff from that information, therefore the VPPA did not apply.
"It does not make sense that a video tape service provider's liability would turn on circumstances outside of its control and the level of sophistication of the third party," the 2nd Circuit said. "The ordinary person standard is a more suitable framework to determine what constitutes personally identifiable information because it 'better informs video service providers of their obligations under the VPPA,' while not impermissible broadening its scope to include the disclosure of technological data to sophisticated third parties."
The ruling affirmed one from the U.S. District Court for Eastern New York, which said the plaintiff failed to allege an "impermissible disclosure" of her personal information. The 2nd Circuit said it followed the precedent by the 3rd Circuit in a 2016 VPPA case that found a law from 1988 cannot be fairly read to incorporate modern understandings of the internet and privacy.
This case is another of many recent decisions about the VPPA, which, some privacy lawyers say, may tee up review from the U.S. Supreme Court soon (see 2504150047).
Several circuit courts have ruled on what it means to be a consumer under the statute, with the 2nd Circuit (see 2501100009) and 7th Circuit (see 2503310018) taking a broad view, while the 6th Circuit adopted a narrower definition (see 2504030064). The 9th Circuit also has a narrow view of definitions in the statute, though it focused on what it meant to be a videotape service provider (see 2503270053). In February, the D.C. Circuit heard an oral argument in a VPPA case as well, though it also appeared to lean toward a narrower ruling of the Act (see 2502280051).