Appellate Court Split Seen as Key in Supreme Court Accepting Video Privacy Case

Whether the Supreme Court opts next month to take up an appeal of a 3rd U.S. Circuit Court of Appeals ruling in a Nickelodeon video privacy case could hinge on whether the 3rd and 1st U.S. Circuit are split on what constitutes personally identifiable information (PII) as laid out by the Video Privacy Protection Act (VPPA). The case, C.A.F v. Viacom, was distributed for a conference to be held Jan. 6, according to the Supreme Court docket.

The schism between the 3rd Circuit's decision earlier this summer (see 1606270047) and a 1st Circuit ruling in Yershov v. Gannett over the VPPA's definition of PII is the major certifiable question that could get the case taken up by the Supreme Court, said Alan Butler, Electronic Privacy Information Center (EPIC) senior counsel. Given the number of online video rental services and the amount of data being collected about users, "These cases will keep coming up until it's resolved," Butler said. EPIC filed an amicus brief with the 3rd Circuit on behalf of the plaintiff/appellants.

The petitioners are a group of Internet-using minors who had watched Nickelodeon videos on Nick.com and subsequently had data collected about them by Viacom and Google. They sued alleging privacy violations. They said in their petition that the 3rd Circuit decision that PII means data that would let an ordinary person identify an individual's video-watching behavior created a conflict by ignoring that in the 1st Circuit decision that court found that using software to link information disclosed to certain persons was a basis for finding that personal information was being wrongly disclosed.

In arguing for the high court to take up the appeal, the petitioners also said the 3rd Circuit's analysis of the VPPA acknowledges different federal judges "could reasonably come to a different result with identical facts," and thus the case raises an important issue of federal law. In the 3rd Circuit ruling, the petitioners said, the appellate judges acknowledge that parts of the legislative history of VPPA indicate it was intended to be a broad statute protecting consumer privacy even while video-watching technology changed over time, even though that's not how the judges said they interpret the law. Multiple courts have indicated PII guidelines under VPPA aren't clear, the petitioners said. "In the absence of guidance from this Court, courts across the county will continue to struggle with a definition -- fostering uncertainty in the law for both consumers and streaming digital video content providers on the Internet."

The petitioners also said the 3rd Circuit decision conflicts with other federal appellate courts on whether third-party cookie companies can be liable under the Wiretap Act. The practical effect of the 3rd Circuit's opinion "is that the Internet would become a zone where the Wiretap Act rarely applies because, due to the manner in which computers are connected on the Internet, an interceptor could always argue it is a 'party to the communication,'" contrary to the intent of the Electronic Communications Privacy Act, the petitioners said.

But Viacom argued in a brief in opposition to the petition that "the issues presented are specific to the particular facts" of the case. Since the 3rd Circuit affirmed dismissal of all but one of the petitioners' arguments and reinstated one claim against Viacom, which is being litigated in U.S. District Court, Viacom said in a brief in opposition to the petition the interlocutory appeal doesn't implicate any split in circuit court authority.

Viacom said numerous cases have died at the motion to dismiss stage because the complaints didn't allege disclosure of information that identifies a particular individual and the video that person watched. The one exception, Yershov, "depended on unique facts and not a different legal approach," Viacom said.