DC Circuit's Dismissal of VPPA Case Narrows Definition of Consumer
The definition of consumer under the Video Privacy Protection Act (VPPA) is narrow, the U.S. Court of Appeals for the D.C. Circuit said Tuesday. The appeals court affirmed a lower court's dismissal of a case against the Washington Examiner that alleged it violated the federal statute. A concurring opinion from one of the judges said the VPPA seems outdated and suggested that consumer was not the only term in the VPPA that should be narrowly defined.
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In Pileggi v. Washington Newspaper, plaintiff Nicole Pileggi alleged the newspaper shared users’ private video viewing information from its online site with Facebook without consent. Since Pileggi has a subscription to the Washington Examiner newsletter, disclosing her information violates the VPPA, the plaintiff argued.
“The district court was correct that Ms. Pileggi is not a ‘consumer’ protected by the Video Privacy Act because, in visiting the Washington Examiner’s website, she did not subscribe to a video or similar audio-visual good or service,” said Judge Patricia Millett, who authored the opinion for the panel of herself and Judges Robert Wilkins and Arthur Randolph. “As a result, Washington Newspaper did not violate the Video Privacy Act when it gathered information about her viewing history on the website and gave it to Meta.”
“Congress confined a ‘consumer’ protected by the Video Privacy Act to someone who is a ‘renter, purchaser, or subscriber of goods or services’ that come ‘from a video tape service provider,’” said Millet. “The logical meaning of the sentence as a whole is that a consumer is a person who obtains the products or services that one seeks from a video tape service provider -- that is, videos.”
“After all, if Congress sought to protect the consumers of ‘goods or services from a medical provider,’ the natural reading would be that consumers are those who received medical services, not those who only bought a coffee in the foyer,” she added. “The named source ‘from’ which the product must derive gives meaning to the scope of the regulated goods and services.”
Wilkins signed Millett’s opinion, while Randolph authored a concurring opinion that additionally noted the Washington Examiner is not a ‘video tape service provider.’”
“Technology has overtaken this federal statute and has rendered it largely obsolete,” he wrote. “The VPPA addressed a different problem in a different time. If the statute needs updating, that is Congress’s work to do, not ours.”
“The ‘function and operation’ of a ‘prerecorded video cassette tape’ bear little similarity to those of a short online video clip,” as “the two formats plainly do not ‘operate in the same manner,’” Randolph added. “Moreover, the ‘function[s]’ of a brief informational clip and a feature-length movie are entirely different. An online news clip and a VHS rental may both be videos at some high level of generality, but the VPPA’s statutory language forecloses such a broad-brush approach.”
The D.C. Circuit held oral argument in case 24-7022 in February (see 2502280051). In January 2024, the U.S. District Court for the District of Columbia dismissed the case for Pileggi’s failure to state a claim.
The definitions of what it means to be both a consumer and a video tape service provider under the VPPA has been debated in several other courts across the country, and a current circuit split on the issue may tee up eventual review by the U.S. Supreme Court, some privacy lawyers think (see 2504150047).
The NBA has appealed a VPPA case against the association to the SCOTUS, where it is pending (see 2507160026), after a 2nd U.S. Circuit Court of Appeals decision widened the scope of the federal statute (see 2501100009).
The 7th U.S. Circuit Court of Appeals takes a similarly broad view of the VPPA as the 2nd Circuit (see 2503310018), while the 6th U.S. Circuit Court of Appeals holds a more narrow view of what it means to be a consumer (see 2504030064).