DMA Backs Vizio In Video Privacy Battle

The ad group Data and Marketing Association is seeking to get involved in a lawsuit accusing smart TV manufacturer Vizio of violating a federal video privacy law by sharing information about viewers with ad-tech companies and data brokers.

The result of the lawsuit "will have a direct impact on DMA and its members," the organization writes in court papers filed Friday with U.S. District Court Judge Josephine Staton in Santa Ana, California.

The organization is supporting Vizio's request that Staton authorize an immediate appeal of her order allowing customers to proceed with allegations that it violated the federal Video Privacy Protection Act. That law, which dates to 1988, prohibits video providers from disclosing personally identifiable information about customers' video-viewing history.

In March, Staton refused to dismiss the case at a preliminary stage. She rejected Vizio's arguments that the federal law doesn't apply to device manufacturers like itself.

The judge said in a written ruling that Congress intended for the video privacy law to apply to companies that are "in the business of delivering video content."

She also rejected Vizio's contention that the type of information allegedly disclosed -- including IP addresses, media access control (MAC) addresses, ZIP codes, computer names, and product serial numbers -- couldn't be personally identifiable.

While Staton made clear that the ruling was only preliminary, and could change depending on facts that emerged as the case progressed, she also suggested that even theoretically "anonymous" data could be used to identify individuals. In the written opinion, she pointed to allegations in the complaint that MAC addresses can be used to learn specific geolocation data, and to identify individuals when combined with data about IP addresses, ZIP codes, serial numbers, and other data.

Earlier this month, Vizio asked Staton for permission to immediately appeal to the 9th Circuit Court of Appeals.

The DMA on Friday supported that request in a proposed friend-of-the-court brief. The organization that Staton's "expansive" interpretation of the video privacy law could pose a threat to DMA members.

"The order creates substantial legal uncertainty for a wide range of businesses that participate in the data-driven marketing economy that must now reevaluate the risk of liability under this new standard," the DMA writes.

The DMA adds that no other judges have ruled that a manufacturer is covered by the law. But privacy expert Bill McGeveran, a University of Minnesota law professor who has testified on Capitol Hill about the video privacy law, told MediaPost Staton's interpretation appears consistent with lawmakers' intentions.

"The statute was conceived of in a brick and mortar world, but was written by design to be expansive," he said in March. He added that nothing in the text of the law makes it inapplicable to hardware providers.

Earlier this year, the Federal Trade Commission brought an enforcement action against Vizio for allegedly engaging in an unfair practice by tracking consumers, and for deceiving consumers by failing to adequately explain its data practices. The company agreed to settle the charges by paying $2.2 million to the FTC and the state of New Jersey, which also prosecuted the manufacturer.

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