Eichenberger v. ESPN, Inc. - 876 F.3d 979 (9th Cir. 2017)

Rule:

The term "personally identifiable information" within meaning of 18 U.S.C.S. § 2710(b)(1) covers some information that is capable of identifying a person, as well as information that, standing alone, identifies a person.

Facts:

Defendant ESPN, Inc., produced sports-related news and entertainment programming. Though best known for its television channel, defendant also offers access to video content through an application which is available on the Roku digital streaming device which allowed users to view videos and other content on their televisions by means of Internet streaming. Plaintiff Chad Eichenberger downloaded the defendant’s application on his Roku device and used it to watch sports-related news and events. He did not consent to defendant's sharing his information with a third party. But every time plaintiff watched a video, defendant knowingly disclosed to a third party, Adobe Analytics the plaintiff's Roku device serial number and the identity of the video that he watched. Plaintiff alleged that defendant violated the Video Privacy Protection Act of 1988 which bars a video tape service provider from knowingly disclosing personally identifiable information concerning any consumer of such provider.18 U.S.C. § 2710(b)(1). The district court dismissed the action under Federal Rule of Civil Procedure 12(b)(6) on the ground that the operative complaint fails to state a claim that the information disclosed was personally identifiable information within the meaning of the VPPA.

Issue:

Did the defendant disclosed the plaintiff's personally identifiable information in violation of the Video Privacy Protection Act of 1998 by giving the third party the information?

Answer:

No.

Conclusion:

The court held that on the part where plaintiff alleged that defendant disclosed his personally identifiable information in violation of the Video Privacy Protection Act of 1998 by giving a third party his Roku device serial number and by identifying videos he watched through defendant's application, plaintiff had Article III standing to bring his claim because 18 U.S.C.S. § 2710(b)(1) was a substantive provision protecting consumers' concrete interest in their privacy. But, the allegedly disclosed information did not constitute personally identifiable information within the meaning of the VPPA, however, because an ordinary person could not have used the information that defendant allegedly disclosed to identify an individual.