Getting A Handle On VPPA Risk - A Data Driven Approach

by Holland & Knight LLP
Contact

Getting a Handle on VPPA Exposure in the Wake of Hulu

Given all the Video Privacy Protection Act (VPPA) activity lately - in particular Hulu's failure to get the VPPA case against it dismissed on summary judgment - this is a good moment to take stock of where the exposure lies, and what can be done to avoid liability on the technical, development, and marketing side of websites and mobile apps.

The Insight From Hulu: Not all Unique IDs are Created Equal

The VPPA is meant to prevent the disclosure to third parties of one's video viewing history in a way that is personally identifiable. For websites and mobile apps, the recent litigation has revolved primarily around the sharing and transmission of unique IDs, and the extent to which such IDs are personally identifiable. The unique IDs that cause problems, at least using the recent summary judgment opinion in the Hulu case as a guide, are unique IDs that correspond to end-user accounts or actual people. In the case of Hulu, the IDs set by Comscore's tags were randomly assigned with no direct link to an individually identifiable end-user and did not correspond to any registered customer account.  As a result, the use of the Comscore tags on pages with video access did not violate the VPPA.  The court's reasoning was that such information could not be reasonably used to identify an individual. The claims involving the Comscore IDs have been dismissed from the Hulu case on summary judgment. 

The information sharing that has survived defendant's summary judgment in the Hulu case is the information historically found in Facebook's "c_user" and "lu" browser cookies, which could be linked to specific, registered Facebook users. The Facebook cookies were transmitted to Facebook by the end-user's browser on every occasion that the end-user visits a webpage where the 'Like' button is placed by the website developer. This transmission occurs on webpages where videos appear, and happens regardless of whether the 'Like' button is clicked. The information sent to Facebook, along with the potentially personally identifying cookies, includes the URL of the page, which typically identifies the exact video being watched.

The court denied Hulu's motion to dismiss plaintiffs' VPPA claims regarding data sharing with Facebook. Both sides are now gearing up to define and/or limit the contours of the relevant class.

(It should be noted that although Facebook has changed some of the cookie behaviors over time, and they are not exactly as described in the lawsuit at present, the behavior of the 'Like' button has, in most respects, not materially changed.)

The View from the Lab: How to Manage VPPA Risk

So where will the plaintiffs turn next? Based on what we have seen in our recent baseline reviews in the internal Holland & Knight Data Privacy Testing Lab, there are a number of JavaScript tags and mobile APIs/third-party code that we believe are on the radar of the plaintiffs' bar and which will likely become a focus for plaintiffs going forward.

The best way for companies to manage this risk is to make sure that on webpages that host streaming or downloadable videos, the company has removed JavaScript tags that would result in the transmission of unique identifiers to third-party entities that either: (i) have a registered account user base, like a social network, (ii) are known to engage in the process of personal data matching, or (iii) could be characterized as a data broker.  In the mobile context, it will be important to refrain from using third-party libraries or API's in such a way that results in the transmission of unique identifiers to the same types of entities.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Holland & Knight LLP | Attorney Advertising

Written by:

Holland & Knight LLP
Contact
more
less

Holland & Knight LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.