Splintered Video Privacy Rulings Won’t Be Fixed by Supreme Court

The Bottom Line

• A Supreme Court case involving the Video Privacy Protection Act likely won’t resolve increasingly fractured VPPA rulings among circuits.
• District courts are divided on what standard to use to evaluate “personally identifiable information.”
• The outcome of litigation can hinge on choices about venue selection and data architecture.

The US Supreme Court’s decision to review the definition of a “consumer” under the Video Privacy Protection Act is expected to resolve a circuit split about whether a consumer is limited to a person who purchases or subscribes to audio visual goods or services, as opposed to any type of goods or services.

Though the decision in Salazar v. Paramount Global will have an impact, it’s unlikely to address another increasingly fractured circuit split.

Personally Identifiable Information

The VPPA defines personally identifiable information, or PII, as including information that “identifies a person as having requested or obtained specific video materials or services from a video tape service provider.” This statutory definition lacks clarity and offers limited guidance to district courts.

Two standards have emerged for determining whether information constitutes PII. The US Court of Appeals for the First Circuit uses a reasonable foreseeability standard under which PII includes information “reasonably and foreseeably likely” to disclose which videos the plaintiff has viewed.

By contrast, the Second, Third, and Ninth Circuits have adopted the “ordinary person” standard, which limits PII to “the kind of information that would readily permit an ordinary person to identify a specific individual’s video-watching behavior.” Even among these circuit courts, interpretations of the ordinary person standard differ dramatically, particularly concerning VPPA claims based on advertising pixels.

While the Second Circuit has held it implausible for an ordinary person to ascertain “who watched what” from code‑based transmissions like those generated by pixels, courts within the Third and Ninth Circuits treat the issue as a factual question dependent on the specific circumstances of each case.

As a result, VPPA lawsuits in the Second Circuit that attack the use of advertising pixels on public-facing websites are more likely to be dismissed with prejudice at the pleading stage, whereas substantively similar claims brought in the Third and Ninth Circuits typically withstand pleading challenges.

Like the circuit splits over the definition of a “consumer” and the appropriate PII standard, this nuanced but significant difference in the way otherwise aligned circuits apply the “ordinary person” test may result in forum shopping unless and until the Supreme Court weighs in.

‘Ordinary Person’ Standard

In 2016’s In re Nickelodeon Consumer Privacy Litigation, minor plaintiffs alleged Viacom disclosed digital information about them—including IP addresses, users’ browser and operating system settings, and unique device identifiers—to Google.

The Third Circuit determined that Congress’ intent in enacting the VPPA was “quite narrow”—“to prevent disclosures of information that would, with little or no extra effort, permit an ordinary recipient to identify a particular person’s video-watching habits.”

The appellate panel rejected plaintiffs’ argument that Google could aggregate otherwise anonymous data to identify individual children, finding it “simply too hypothetical” to establish VPPA liability given the digital identifiers at issue. It held that PII is limited to “the kind of information that would readily permit an ordinary person to identify a specific individual’s video-watching behavior.”

The following year, the Ninth Circuit adopted the Third Circuit’s ordinary person standard in Eichenberger v. ESPN, Inc., concluding that this approach provided clearer guidance about video service providers’ obligations under the VPPA than the First Circuit’s standard.

The court explained: “[The statute] looks to what information a video service provider discloses, not to what the recipient of that information decides to do with it.” This interpretation is logical; otherwise, VPPA liability would depend on factors beyond a video service provider’s control. Applying the ordinary person standard, the Ninth Circuit concluded that the plaintiff’s device serial number didn’t qualify as PII but left open the possibility that a “Facebook link or an email address” could.

In Solomon v. Flipps Media, Inc., the Second Circuit last year also adopted the ordinary person standard, in a VPPA case specifically challenging the use of advertising pixels. But how the Solomon court applied the standard “effectively shut the door for Pixel-based VPPA claims.”

Focusing on the dozens of lines of computer code transmitted to Facebook via the advertising pixel, the Second Circuit determined it wasn’t plausible an ordinary person could, “with little or no extra effort,” identify video-watching behavior.

Applying the same ordinary person standard to pixel-based VPPA cases should yield uniform decisions across different jurisdictions. This isn’t the case. While Second Circuit district courts typically dismiss these types of claims outright, courts in the Third and Ninth Circuits have demonstrated a willingness to allow them to advance beyond the pleading stage.

This difference in judicial approach can have profound implications for litigation strategies in these forums.

Focusing on Format

In the wake of Solomon, district courts in the Second Circuit have routinely dismissed pixel-based VPPA claims. In Golden v. NBCUniversal Media, LLC, a consumer plaintiff included screenshots of the computer code transmission allegedly sent to Facebook via the pixel at issue.

Relying on Solomon and its progeny, the Southern District of New York last year dismissed the claim because “the alleged disclosure could not be appreciated—decoded to reveal the actual identity of the user, and his or her video selections—by an ordinary person but only by a technology company such as Facebook, it did not amount to PII.”

In Henry v. Major League Baseball Advanced Media, L.P., a different Southern District of New York judge clarified in January that a plaintiff can’t avoid the implications of Solomon by not including a screenshot of the transmitted information.

In that case, the plaintiff alleged, without the support of any visual representation, that a pixel transmitted his email address, phone number, and website interactions. Rejecting his VPPA claim, the court explained that Solomon “requires non-conclusory allegations” regarding the actual underlying communication from the video tape service provider.

In other words, in the Second Circuit, a plaintiff can’t simply allege that a pixel transmits categories of information that would permit an ordinary person to discern video-watching habits; they must also plausibly allege that information is legible to an ordinary, non-sophisticated actor.

As these and other district court cases make clear, Solomon has effectively foreclosed VPPA causes of action premised on the disclosure of PII by advertising pixels. This is because the Second Circuit has determined that, as a matter of law, it isn’t plausible that an ordinary person could decipher the technical, code-based information transmitted by the pixels.

Focusing on Content

By contrast, district courts in the Third and Ninth Circuits focus on the content of the information allegedly disclosed and treat the legibility of its transmission as a disputed factual issue.

In Cole v. LinkedIn Corp., the plaintiff alleged that:

• The defendant disclosed her PII by transmitting the URLs of videos viewed, together with her Facebook ID, to both Facebook and Adobe
• The URLs contained the videos’ titles
• The Facebook ID allows anyone to identify a Facebook profile and any publicly available personal information associated with that profile

The defendant argued that “any information it disclosed about [plaintiff’s] viewing history was paired with voluminous other information and that an ordinary person would therefore have been unable to sift through the morass of data to find the pieces that identified [plaintiff] and her video-watching behavior.”

However, the Northern District of California found this argument raised factual questions not suitable for resolution on a motion to dismiss and concluded last year that the plaintiff’s allegations were sufficiently plausible to state a claim under the VPPA.

The Eastern District of Pennsylvania came to the same conclusion in 2023 when faced with similar allegations in Braun v. Philadelphia Inquirer, LLC. It found that “the question about whether URLs should be considered substantive content of a communication—؅as defined by the VPPA in the context of Meta Pixel litigation—would tend to be a question that would require a developed factual record beyond the mere pleading stage of litigation to adequately evaluate.”

Other district courts have made their disagreement with the Second Circuit’s approach in Solomon more explicit.

In Balestrieri v. SportsEdTV, Inc., the defendant relied on Solomon in arguing that “an ordinary person would not be able to discern Plaintiff’s Facebook ID from the c_user cookie.” Rejecting this argument, the Northern District of California made clear that “Solomon is neither on point nor controlling” for two reasons.

First, unlike the Solomon plaintiff, the Balestrieri plaintiff hadn’t introduced any information regarding the code used to transmit the alleged PII. For this reason, and because it denied defendant’s request to introduce such information, the court held that the plaintiff’s allegations, taken as true, passed muster at the pleadings stage.

Second, the court determined that Solomon was “contrary to the weight of authority in [the Ninth] Circuit.” Citing several California district court cases and the growing technological fluency of the general public, the Balestrieri court held that whether “an ordinary person can identify the Facebook ID from the Pixel code or use that Facebook ID to access a Facebook profile are questions of fact best reserved for a jury, or at the very least, summary judgment.”

The Second Circuit’s decision to “close the door” to pixel-based claims at the pleadings stage doesn’t appear to have moved the needle for other circuit courts applying the ordinary person standard.

Practical Steps

Companies that continue to use embedded technologies such as the Facebook Pixel (or similar tracking tools) should carefully review the technical configurations on their websites and consider implementing several practical measures to limit their exposure in VPPA litigation associated with the use of such pixels.

Update terms of service to include a forum selection provision favoring the Second Circuit. If appropriate, include a forum selection clause stating that users irrevocably consent to the exclusive jurisdiction of a court in the Second Circuit (such as in New York County) for any legal actions and waive any objections related to personal jurisdiction or venue—including claims of inconvenient forum or requests to transfer venue.

Restrict or turn off pixel firing on pages associated with video requests. If possible, disable pixel firing on pages or during user actions that involve requesting or viewing particular video content, especially if URLs or metadata may disclose specific titles. If tracking is necessary for business reasons, consider anonymizing any shared data so that it can’t be easily connected by an average person to both the individual and the specific videos they accessed.

Document pixel configurations. Ensure comprehensive records clearly illustrate how pixel settings prevent the combined transmission of the titles of specific video materials and user identifiers.

If sued in a venue where the legibility of the alleged disclosure is adjudicated as a legal matter at the Rule 12 stage, such documentation will clarify the nature of any disclosures. In cases where the legibility of the alleged disclosure is considered a factual issue, these records can facilitate discovery and support motions for summary judgment.

Monitor Supreme Court decisions on the definition of a “consumer” and adjust accordingly. The justices’ review of the VPPA’s “consumer” definition may affect threshold standing and highlights the need for regular review of forum selection provisions and data‑collection practices as the law evolves.

Because courts in the Second Circuit commonly treat the legibility of the information allegedly transmitted as a legal question at the pleading stage—while courts in the Third and Ninth Circuits often defer their determinations until additional factual development has occurred—choices about venue selection and data architecture can materially affect the outcome of litigation.

An immaterial amount of this content was drafted by generative artificial intelligence.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Jean Mooney is counsel at DTO Law with more than two decades of experience in complex civil and class action litigation.

Will Irvine is an associate at DTO Law representing business clients in complex commercial litigation and class actions.

Write for Us: Author Guidelines