• by Wendy Davis  @wendyndavis, November 4, 2016

Consumers who are suing Vizio over its alleged data-sharing practices are slamming the company's stance that federal video privacy law doesn't apply to device manufacturers like itself.

Vizio's argument "has a catch-me-if-you-can quality," the consumers say in papers filed Thursday with U.S. District Court Judge Josephine Staton in Santa Ana, California. "The law, it insists, is outmoded and can do nothing to stop the trap Vizio has laid for consumers."

The consumers' argument comes in response to Vizio's request to dismiss a class-action complaint accusing the company of violating the Video Privacy Protection Act, which prohibits video providers from disclosing "personally identifiable information" about people's video-viewing history.

The lawsuit alleges that Vizio, which recently agreed to be acquired for $2 billion by Chinese tech company LeEco, tracks TV viewers by default, and then shares data with companies that send targeted ads to people's phones, tablets and other devices. The first video privacy lawsuit against the company was filed last November, less than one week after ProPublica published a report about the company. Since then, other consumers brought similar lawsuits; all of the cases have been consolidated in front of Staton. Some of the earlier versions of the lawsuits included allegations against ad agencies and ad tech companies, including the WPP Group, Interpublic, Tapad, Inc. Xaxis, TubeMogul, Visible World and others. But those companies aren't named as defendants in the complaint currently pending in front of Staton.

"Vizio’s sharp practices are an outlier in the industry," the consumers say in their new court papers. "Vizio’s major competitors impose an opt-in requirement to invasive data tracking, whereas Vizio impose a buried and misleading opt-out default option."

The federal law at the center of the lawsuit, the Video Privacy Protection Act, was passed in 1988, after s newspaper in Washington, D.C. obtained and printed the video rental records of Supreme Court nominee Judge Robert Bork. The law's restrictions apply to providers of videotapes or "similar audiovisual material."

Two months ago, Vizio asked Staton to dismiss the lawsuit. Among other reasons, Vizio argued that the 1988 law doesn't cover consumer electronics manufacturers. The company says it isn't "akin to the video rental store that Congress targeted," but is instead "like a building that leases space to several video rental stores."

But the consumers say Vizio is interpreting the law too narrowly. "Vizio is not merely a television manufacturer, it also provides them a service: the delivery of streaming video," they consumers say. "Indeed, plaintiffs purchased these Smart TVs in part because Vizio’s technology brings the video rental store into the home, allowing plaintiffs to access video on demand through Vizio’s proprietary interface."

Vizio also argued that the lawsuit should be thrown out on the grounds that the type of data it allegedly disclosed isn't "personally identifiable information." The complaint alleges that Vizio disclosed material like IP addresses, MAC (media access control) addresses, zip codes, computer names, and product serial numbers.

But the consumers counter that this type of information is "unique" and should be considered personally identifiable. "MAC addresses are unique to plaintiffs’ smart TVs and other electronic devices and serves as a wireless beacon that regularly broadcasts the device’s precise location," they say in their new motion papers.

Judges throughout the country have split on the question.

The 1st Circuit Court of Appeals ruled earlier this year that Gannett potentially violated the law by allegedly transmitting users' device identifiers, GPS data and video- viewing history to Adobe.

But other courts have dismissed lawsuits against video distributors that allegedly transmitted "anonymous" information to outside companies. In one recent dispute, a judge in Seattle dismissed a lawsuit by Roku user Chad Eichenberger, who accused ESPN of sending his Roku's serial number, combined with data about videos watched, to Adobe. Eichenberger has appealed that matter to the 9th Circuit Court of Appeals, where the case is pending.