[author: Matthew Emery - Summer Clerk]

Technology has allowed consumers to use Apps and devices to stream their favorite content at the touch of a button. The popularity of these streaming Apps and devices has raised legal issues with regard to privacy. Subscribers are suing companies like Netflix, Hulu, and Roku for violating the Video Privacy Protection Act (“VPPA”).[1] Generally, the VPPA protects a consumer’s privacy. While it prohibits companies from sending Personally Identifying Information (“PII”) to third parties, it does not prohibit sending anonymous information. However, a case in the District Court of Washington (Chad Eichenberger v. ESPN Inc.) has prompted some debate as to whether anonymous information provides a cause of action under the VPPA.

Federal Judge Thomas Zilly dismissed the case Chad Eichenberger v. ESPN Inc. for failure to state a claim, holding that personally identifiable information pertains to information that specifically identifies an individual; it does not include anonymous identification numbers or information.

Chad Eichenberger, the plaintiff in this case, claimed that the network violated the VPPA by passing on information about viewers using its WatchESPN app via Roku streaming media devices to Adobe Analytics.  Jay Edelson, the attorney for the plaintiff, argued that ESPN disclosed users’ Roku device serial number and video viewing history to Adobe Analytics.  He then claimed that Adobe matches the anonymous information with personal identifiers from other associated sources “to form comprehensive profiles about a person’s entire digital life.”[2] ESPN countered that the VPPA does not apply to anonymous information such as serial numbers, what Adobe did with the information could not be the basis of a claim against ESPN, and Eichenberger had not shown evidence that Adobe cross-references user information in the way that he alleged.

Edelson has unsuccessfully made this argument before.  In January of 2015, he represented Terry Locklear in Federal Court in Georgia.  Locklear claimed that Dow Jones disclosed her Roku device serial number and video viewing history to a company called mDialog. The Court dismissed the case because the “Roku serial number, ‘without more,’ is not akin to identifying a particular person and, therefore, is not PII.”[3]

Edelson is arguing that if the third party uses anonymous information to engage in “after-the-fact” linking to identify a person, then there should be a cause of action against the company sharing the anonymous information under the VPPA.  As of yet, the District Courts have not accepted this argument, but it has been filed for appeal in the Ninth Circuit.

[1] In re Hulu Privacy Litig., 2014 U.S. Dist. LEXIS 59479; See Jody Godoy, ESPN App Users Take Privacy Fight To 9th Circ., Law 360, (June 8, 2015), http://www.law360.com/articles/664783.

[2] Chad Eichenberger v. ESPN, Inc., C14–463 TSZ (W.D.Wash. Nov. 24, 2014).

[3] Locklear v. Dow Jones & Co., 2015 U.S. Dist. LEXIS 16301, 43 Media L. Rep. 1308 (N.D. Ga. Jan. 23, 2015).