• by Wendy Davis  @wendyndavis, October 25, 2012

A Michigan resident is preparing to ask a federal appeals court to reinstate his privacy lawsuit against Pandora, court records show.

Peter Deacon alleged in a 2011 lawsuit that Pandora violated a Michigan privacy law by participating in Facebook's "instant personalization" program. That program shares logged-in Facebook users' names and photos with outside companies, including Pandora. While Facebook users could always opt out of instant personalization, at launch it operated by default.

Deacon said in his complaint that the Pandora-Facebook partnership led to disclosure of his "sensitive listening records" to his friends on the site. He argued that revealing this type of information is illegal under Michigan's Video Rental Privacy Act, which prohibits companies that rent, sell or loan music from revealing information about customers without their consent.

Late last month, U.S. District Court Judge Saundra Brown Armstrong in Oakland, Calif. threw out Deacon's lawsuit, ruling that Michigan's privacy law doesn't apply when companies stream music online. Her decision was based on the relatively narrow language of the law, which specifically refers to businesses that rent, sell or lend music. The statute -- which is more than 20 years old -- makes no mention of Web streams.

Armstrong said in her ruling that Deacon could amend his complaint, but last week, he notified the court that he didn't intend to do so. That move sets the stage for Armstrong to enter a final ruling, which will enable Deacon to appeal to the 9th Circuit Court of Appeals.

Deacon's lawyer, Jay Edelson, tells Online Media Daily that his firm is "looking forward to making our arguments to the 9th Circuit."

A different judge recently ruled against Hulu in a privacy lawsuit accusing it of violating a federal privacy law by sharing Web users' information with ad networks and analytics companies.

In that case, Hulu argued that the lawsuit should be dismissed because the federal law mentioned "videocassettes" and "similar audiovisual materials," but not streaming video. (That law is worded differently than the one in Michigan.) But U.S. Magistrate Judge Laurel Beeler in the Northern District of California ruled that the 24-year-old federal law was aimed at protecting the privacy of people who watch video -- regardless of technical format.