Summary
This Second Circuit opinion affirms the district court's dismissal of a plaintiff's complaint alleging violations of the Video Privacy Protection Act (VPPA) after a streaming service disclosed viewing data and a Facebook ID to Facebook via tracking pixels. The court adopts the "ordinary person standard" to define personally identifiable information, concluding that the disclosed data could not readily permit an ordinary person to identify the plaintiff's video-watching habits. Additionally, the appellate court upheld the district court's denial of leave to amend, noting the plaintiff failed to adequately propose amendments despite multiple opportunities.
Topics
Practice areas
Questions Presented
- Whether the complaint plausibly alleged a VPPA violation by disclosing personally identifiable information.
- Whether the district court abused its discretion in denying leave to amend the complaint.
Holdings
- The complaint failed to plausibly allege that FITE disclosed personally identifiable information; the ordinary‑person standard applies and the disclosed code does not identify a consumer to an ordinary person.
- The district court did not abuse its discretion; the denial of leave to amend is affirmed.
Key quotations
“We conclude that the Complaint fails to state a claim for violation of the VPPA and we therefore affirm the district court's dismissal of the Complaint.” (*1)
“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".” (*1)
Factual background
FITE, a digital streaming service, used Facebook's Pixel to transmit, each time a subscriber streamed a video, a code containing the video title/URL and the subscriber's Facebook ID (FID) to Facebook. Solomon, a subscriber, alleged that this transmission disclosed her personally identifiable information in violation of the Video Privacy Protection Act (VPPA). The district court found the alleged disclosures insufficiently identifiable to an ordinary person.
Procedural history
The district court granted FITE's motion to dismiss, holding that Solomon did not plausibly allege that FITE disclosed personally identifiable information under the VPPA, and denied her request to amend the complaint. The appeal challenges both determinations.