• by Wendy Davis  @wendyndavis, September 11, 2017

A federal appellate court appears poised to decide whether consumers are entitled to sue for privacy violations when information about their video viewing has allegedly been transmitted to outside companies.

Late last week, the 9th Circuit Court of Appeals spontaneously asked lawyers for both ESPN and Chad Eichenberger -- a consumer who alleges his video privacy rights were violated -- to address whether Eichenberger has "standing" to proceed in federal court.

The move comes three weeks after the same court ruled that online data broker Spokeo must face a privacy lawsuit for allegedly displaying incorrect information about Virginia resident Thomas Robins.

The U.S. Supreme Court said last year that Robins could only proceed in federal court if he showed he suffered a "concrete" harm -- but also said that Robins need not show a "tangible" injury to proceed. That decision puzzled some outside legal experts, who said it wasn't clear how the court was distinguishing "concrete" from "tangible."

Last month, a three-judge panel of the 9th Circuit resolved that question in favor of Robins, ruling that his allegations of injury were concrete enough to warrant a lawsuit.

Tech companies, media organizations, business associations, digital privacy advocates and the Obama administration weighed in on the Spokeo dispute while it was pending before the Supreme Court. Consumer watchdogs backed Robins, while Google, Facebook and other companies sided with Spokeo. One reason the case drew intense interest is that many tech companies are facing lawsuits for allegedly violating a federal statute -- like the video privacy law, or anti-robo-texting law -- but may not have placed any consumers at risk of harm.

The ESPN matter stems from a video privacy lawsuit by Eichenberger, who alleges that the company sent his Roku serial number, combined with data about videos watched, to Adobe. Eichenberger argued that ESPN violated the federal Video Privacy Protection Act, which prohibits companies from transmitting personally identifiable data about people's video viewing activity.

U.S. District Court Judge Thomas Zilly in Seattle dismissed Eichenberger's lawsuit in 2015, ruling that Roku's serial number is not personally identifiable information. Eichenberger appealed that ruling to the 9th Circuit.

The order issued by the 9th Circuit late last week directs ESPN and Eichenberger to specifically address whether he should be able to proceed, given the rulings in the Spokeo dispute.

Privacy expert Bill McGeveran, a University of Minnesota law professor, says the judges' move doesn't in itself signal how they intend to rule, given that courts are obligated to address questions about "standing" before deciding other issues raised by lawsuits.

"Standing is an automatic stop-the-presses once the court perceives there might be a problem," he says.

McGeveran also says the 9th Circuit's move is "the legacy of the inscrutable language in the Supreme Court's opinion" in the Spokeo case.

"How something can be intangibly concrete is a metaphysical mystery," he says. "It's not surprising that appellate courts would want to be cautious about it."