• by Wendy Davis  @wendyndavis, September 26, 2017

Consumers should only be able to proceed with federal video privacy lawsuits when information about their viewing behavior is sent to a "natural person," as opposed to an outside company's computer system, ESPN argues in new court papers.

ESPN makes the argument in a new attempt to convince the 9th Circuit Court of Appeals to dismiss a class-action complaint filed by Chad Eichenberger, who alleges that the company sent his Roku serial number, combined with data about videos watched, to Adobe. Eichenberger argued that these alleged transmissions violate the federal Video Privacy Protection Act, which prohibits companies from transmitting personally identifiable data about people's video viewing activity.

ESPN is now asking the 9th Circuit to rule that Eichenberger can't proceed because he didn't allege that he suffered a "concrete" injury -- such as "personal embarrassment" at having his movie history made public.

"The 'disclosures' at issue, as alleged in the complaint, took place entirely at the electronic level, and there is no allegation that any natural person -- much less the public at large -- ever actually learned what video selections plaintiff chose to watch," ESPN argues in papers filed late last week. "The complaint thus wholly fails to allege any 'actual harm.'"

Congress passed the Video Privacy Protection Act in 1988, after a newspaper obtained and published the video rental records of Supreme Court nominee Robert Bork. ESPN argues that lawmakers' intent was to protect against embarrassment.

"As was repeatedly emphasized during Congress’s consideration of this legislation, the embarrassment that the VPPA sought to protect against arises only when other people -- and, worst of all, the public at large -- learn what a particular person’s viewing choices are," ESPN writes.

The company adds that Eichenberger doesn't allege that he "ever suffered embarrassment, harassment, or any other adverse consequence" as a result of the transfer of data "from ESPN’s servers onto Adobe’s servers."

For his part, Eichenberger says Congress also was troubled by companies' ability to create "information pools" -- like digital dossiers -- about consumers. "Congress specifically enacted the VPPA to prevent the disclosure of video-viewing habits to third parties so it could be added to such compilations," he argues.

The dispute also presents a separate issue for the appellate court -- whether Roku serial numbers are personally identifiable information. U.S. District Court Judge Thomas Zilly in Seattle dismissed Eichenberger's lawsuit in 2015 on the grounds that the serial numbers are not the type of personal data that is covered by the federal video privacy law. Eichenberger previously asked the 9th Circuit to reverse that ruling.

The appeals court is expected to hold a hearing Oct. 3 in Pasadena.