Can data privacy laws keep up with technology?
In the US, this remains to be seen.
The Video Privacy Protection Act (VPPA), a 1988 federal law banning the disclosure of information about consumers’ video viewing habits, is a prime example of how legal protections can struggle to keep pace with rapidly advancing technology.
This law was originally enacted to protect the privacy of individuals’ video rental viewing habits. But oh, how times have changed.
The internet, including streaming services like Netflix, is now our primary source of video content (RIP Blockbuster). And with this, comes the issue of illegal data collection through web pixels.
Unlike the European Union, whose online data privacy laws are governed by the General Data Protection Regulation (or GDPR), the US lacks a unified approach to protecting user data. Instead, attorneys must turn to a series of general laws and regulations to navigate the terrain of modern data privacy issues, many of which were drafted before the internet was even widely accessible,
The VPPA is one of them.
In fact, on October 15, 2024, we witnessed a small yet significant development pertaining to the VPPA. The US Court of Appeals for the Second Circuit vacated the dismissal of a proposed class action against the NBA in Salazar v. National Basketball Association. This dismissal is significant because it expands the definitions of "subscriber" and "consumer” under the VPPA, showcasing how courts are reinterpreting privacy laws in light of new digital realities.
The wave of VPPA class actions: how pixel-tracking sparked a legal storm
Over the past two years we’ve seen quite a trend in VPPA litigation regarding online video content and data sharing.
The first case to get notable attention in this recent surge targeted the Boston Globe in early 2022. This VPPA class action, filed in Massachusetts federal court, claimed that the Boston Globe shared data about its users’ video viewing habits on its website with Facebook using Meta pixel tracking.
And while pixel tracking tools, like Meta pixel, aren’t necessarily an issue, it’s when these tools share users’ viewing data with other platforms, like Facebook, for advertising purposes without consent that they become problematic and in turn, violate the VPPA.
After more than a year of litigation, the Boston Globe eventually reached a $5 million settlement. Subsequently, over 100 class actions were brought against online news outlets, streaming services, retailers, gaming companies, and others over the following year, almost all of which were based on use of Meta pixel on their websites or apps.
However, the dismissal rate for these cases was rather high, with only 19 of them resulting in settlements, slowing down the wave of VPPA lawsuits in 2024. But despite the slowdown, attorneys remain vigilant, continuing to pursue claims where companies may still be improperly sharing users' viewing data without consent.
Wrapping up 2024: an update on VPPA case law
One of the most contentious issues when fighting these claims lies in the text of the original law. The VPPA says that no video tape service provider can knowingly disclose “personally identifiable information concerning any consumer.” And while the statute defines “consumer” to mean “any renter, purchaser, or subscriber of goods or services from a video tape service provider,” it doesn’t define the terms “goods or services” or “subscriber.”
However, a legal ruling clarified this ambiguity on October 15. The US Court of Appeals for the Second Circuit vacated the dismissal of a proposed class action against the NBA in Salazar v. National Basketball Association.
In this case, the plaintiff signed up for the NBA’s digital newsletter to access exclusive videos available only on its website. By doing so, he prompted the website to track his interactions on the site and share his personal data without his consent. The plaintiff argued that by subscribing to access video content, he qualified as a “subscriber of goods or services” and therefore, was a “consumer” under the VPPA’s protection.
This dismissal is significant because it broadens the definitions of "subscriber" and "consumer,” reflecting an evolving interpretation by the courts. The court also found that "goods or services" under the VPPA are not limited to audiovisual content but may also include services such as online newsletters as long as the newsletter is related to a business and contains video content.
However, it’s worth mentioning that there is still a split in authority on this issue among courts.
For instance, in Salazar v. Paramount Global, which is awaiting appeal in the Sixth Circuit, and Gardner v. MeTV, which is pending appeal in the Seventh Circuit, lower courts dismissed VPPA claims, determining that signing up for a newsletter did not make the plaintiff a "subscriber of goods or services" without subscription to audiovisual content.
Additionally, various district courts seem to have adopted narrower interpretations, dismissing VPPA claims unless plaintiffs explicitly demonstrated they watched pre-recorded video content on the defendant’s platform or passed a six-factor test derived from an Eleventh Circuit decision.
This culmination of legal developments highlight the complexities courts face when applying a 1988 statute to present-day technology, leading to diverse interpretations of what constitutes a "subscriber" or "consumer" under the VPPA.
Championing privacy in an era of rapid change
Technology shows no sign of slowing down, and US data privacy laws are struggling to keep up. This recent wave of VPPA lawsuits highlights just how challenging it can be to apply outdated legislation to modern issues.
It’s crucial that plaintiffs’ attorneys continue fighting for their clients' privacy while the government must focus on updating laws to meet modern realities.
At Darrow, we’re committed to advancing privacy protection by uncovering VPPA violations and supporting our partners through every stage of litigation. Using advanced anomaly detection algorithms, we analyze vast publicly available datasets to identify hidden violations with precision.
From case assessment to resolution, we provide our partners with the evidence and litigation support needed to achieve justice for their clients.
Interested in working with us on your next privacy case? Contact us.
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