Filed September 19, 2016
As one court put it, "[t]he VPPA requires identifying the viewers and their video choices." In re Hulu Privacy Litig., No. C 11-03764 LB, 2014 WL 1724344, at *12 (N.D. Cal. Apr. 28, 2014 ). Stated differently, "personally identifiable information is that which, in its own right, without more, links an actual person to actual video materials."
Filed December 13, 2014
The authorities CNN relies upon in arguing that MAC Addresses cannot “identif[y] a person” are also unavailing. Indeed, the In re Hulu Privacy Litig., No. 11-cv-3764, 2014 WL 1724344 (N.D. Cal. Apr. 28, 2014) (“Hulu”) decision— which provides the analytical framework for CNN’s other authorities—actually supports Perry’s claims here. And, CNN’s remaining authorities, including the recent Cartoon Network opinion, read the word “identify” too narrowly and ignore both the common usage of that term (as discussed above) and the capabilities and Case 1:14-cv-02926-ELR Document 52 Filed 12/13/14 Page 17 of 35 11 practices of data analytics companies like Bango.
Filed December 5, 2014
Although ESPN could be found liable under the VPPA for disclosing both “a unique identifier and a correlated look-up table” by which Plaintiff could be identified as a particular person who watched particular videos, Plaintiff does not allege sufficient facts to support his theory that Adobe already has a “look-up table.” See In re Hulu Privacy Litig., No. C 11-03764 LB, 2014 WL 1724344, at *11 (N.D. Cal. Apr. 28, 2014). Even if Adobe does “possess a wealth of information” about individual consumers, it is speculative to state that it can, and does, identify specific persons as having watched or requested specific video materials from the WatchESPN application.
Filed December 22, 2014
E.g., Eichenberger v. ESPN, Inc., No. C14-463 TSZ (W.D. Wa. Nov. 24, 2014) (anonymous device serial number not PII under VPPA); Ellis, 2014 WL 5023535 (N.D. Ga. Oct. 8, 2014) (Android ID not PII under VPPA); In re Nickelodeon Consumer Privacy Litig., MDL 2443, 2014 WL 3012873 (D.N.J. July 2, 2014) (anonymous username, IP address, browser setting, unique device identifier, and information about the computer and browser used to view the site not PII under the VPPA); In re Hulu Privacy Litig., No. C 11-03764 LB, 2014 WL 1724344, at *12 (N.D. Cal. Apr. 28, 2014) (“unique identifier – without more” is not PII under the VPPA). Case 1:14-cv-06840-NRB Document 27 Filed 12/22/14 Page 11 of 13 9 established with AMC.
Filed December 1, 2014
That definition does not limit PII to traditional methods of identification like names and addresses, but instead, “plainly encompasses other means of identifying a person.” In re Hulu Privacy Litigation (“Hulu III”), No. C 11-03764, 2014 WL 1724344, at *7 (N.D. Cal. Apr. 28, 2014). The disclosures in Hulu III are identical to those in this case.
Filed November 21, 2014
Gannett is mistaken for two primary reasons. First, the decision Gannett relies on as the cornerstone of its argument—the recent opinion in In re Hulu Privacy Litig., No. 11-cv-3764, 2014 WL 1724344 (N.D. Cal. Apr. 28, 2014) (“Hulu”)—actually supports Plaintiff’s position that Android IDs are personally 7 Privacy and Technology Focus Group: Final Report and Recommendations at 58, Global Justice Information Sharing Institute – U.S. Dep’t of Justice (Sept. 19, 2006), available at http://www.it.ojp.gov/documents/privacy_technology_focus_group_full_report.pdf (last accessed Oct. 12, 2014). 8 Id.
Filed October 23, 2014
Further, there are serious questions as to whether AMC is even a “video tape service provider” as contemplated by the Act and whether a Facebook ID without more can constitute PII in this alleged context (AMC contends—and would ultimately show—that this is not PII here, nor was there any knowing disclosure as a matter of fact and law). See, e.g., In re Nickelodeon Consumer Privacy Litig., 2014 WL 3012873, at *10–13 (unique device identifier cannot be PII); Ellis v. Cartoon Network, Inc., 2014 WL 5023535, at *3 (Android ID not PII); In re Hulu Privacy Litig., No. C 11-03764, 2014 WL 1724344, at *11–17 (N.D. Cal. Apr. 28, 2014) (Hulu user ID not PII, but finding that “context” might render a Facebook ID capable of being PII). Should this case proceed (although it should not), at the appropriate juncture AMC would present to this Court the many flaws in Plaintiff’s theory as well as the myriad reasons why no class can be certified in this case under Fed. R. Civ. P. 23.
Filed October 17, 2014
(“Nickelodeon”), MDL No. 2443, 2014 WL 3012873, *10 (D.N.J. July 2, 2014); In re Hulu Privacy Litigation (“Hulu”), No. C 11-03764 LB, 2014 WL 1724344, at *14 (N.D. Cal. Apr. 28, 2014)). Second, Plaintiff seeks to avoid the requirement under Twombly/Iqbal that he plead facts to support a plausible inference that Adobe obtains information from Roku and/or “additional 2 sources” that enables it to tie Roku device serial numbers to personal information, as required to “personally identify” DI Channel users.
Filed October 3, 2014
That definition does not limit PII to traditional methods of identification like names and addresses, but instead, “plainly encompasses other means of identifying a person.” In re Hulu Privacy Litig., No. 11-cv-3764, 2014 WL 1724344, at **7, 11 (N.D. Cal. Apr. 28, 2014) (“Hulu”). Nonetheless, and despite the fact that analytics companies like Adobe use device identifiers (whether in plain-text or hashed format), Disney asserts that the Roku serial numbers and video viewing histories it disclosed are not PII and thus, do not fall within the VPPA’s purview.
Filed September 12, 2014
Relying on this legislative history, courts have interpreted the VPPA as applying only to disclosures that “identif[y] a specific person and tie[] that person to particular videos that the person watched.” In re Hulu Privacy Litig. (“Hulu”), No. C11-03764, 2014 WL 1724344, *8 (N.D. Cal. Apr. 28, 2014) (emphasis added); see also id. (“The Senate Report shows the legislature’s concern with disclosures linked to particular, identified individuals.”)