This year has seen a tremendous spike in the number of cases alleging violations of the Video Privacy Protection Act (“VPPA”), 18 U.S.C. § 2710, a statute enacted in 1988 in response to the Washington City Paper’s publication of a list of films that then-Supreme Court nominee Robert Bork had rented from a video store. The statute was originally intended to “allow consumers to maintain control over personal information divulged and generated in exchange for receiving services from video tape service providers.”
The Ninth Circuit recently became the third federal appellate court to tackle what constitutes “personally identifiable information” protected by the Video Privacy Protection Act of 1988 (“VPPA”). Last year, the First Circuit and the Third Circuit propounded different standards for applying this statute, as they each grappled with the necessary leap from the age of VCRs to modern video services. In Eichenberg v. ESPN, the Ninth Circuit weighed in, adopting the Third Circuit’s approach and holding that a Roku device serial number coupled with the names of videos watched on an ESPN application were not “personally identifiable” within the meaning of the VPPA. The information, the Ninth Circuit reasoned, would not “readily permit an ordinary person to identify a specific individual’s video-watching behavior.” Therefore it was not protected by the VPPA.