Appeals Court Weighs Video Privacy Claims Against ESPN

Sports broadcaster ESPN asked appellate judges this week to throw out a lawsuit accusing it of violating a federal video privacy law by allegedly sending some data about Roku users to Adobe.

ESPN attorney Daniel Collins told a three-judge panel of the 9th Circuit Court of Appeals that the alleged data transmissions don't present "an actual harm" or a risk of a harm to consumers.

"This arrangement, in which anonymized data is sent from ESPN's servers on to Adobe analytics servers, which does analysis that it then makes available back to ESPN, does not present a material risk of any of the kinds of harms that you see described in the legislative history, and that are epitomized by the Judge Bork paradigm," he said during a 30-minute hearing Tuesday in Pasadena, California.

He urged the court to uphold a ruling dismissing a complaint filed by Roku user 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.

Congress passed that law in 1988, after a newspaper obtained and published the video rental records of Supreme Court nominee Robert Bork.

ESPN had argued in its written that Congress aimed to protect people against embarrassment, but that Eichenberger didn't allege that he ever "suffered embarrassment, harassment, or any other adverse consequence" as a result of data transfers.

Circuit Judge Morgan Christen appeared skeptical of ESPN's argument on that point.

"Judge Bork didn't even watch embarrassing movies. He had really boring movies," she said. "Congress was just outraged that somebody looked at his family movie list."

Collins responded by saying that no outside person ever saw Eichenberger's video-viewing history.

But Christen suggested that even if Adobe only analyzed the data for ad-targeting purposes, consumers may still have suffered a harm.

"What if I just feel creeped out about it -- which I do by the way," she said. "Whenever I go shop for a dress on the internet and then pretty soon ... somebody out there knows that I'm shopping for a dress for a fancy occasion, right and I just keep getting ads for it. Isn't that an invasion of privacy?"

ESPN's lawyer responded that the video privacy act is focused solely on disclosure of people's video-viewing histories, and now on how video service providers gather information.

Circuit Judge Susan Graber had some sharp questions for the attorney for Eichenberger, including how he suffered a "concrete" injury. "What potential, actual real-world harm is alleged in the complaint here?" she asked.

Eichenberger's attorney, Aaron Lawson, said the disclosure itself creates the kind of injury that warrants a lawsuit.

Graber also questioned whether ESPN's alleged transfer of data to Adobe is covered by the video privacy law. "Had ESPN performed this analysis in house, there'd be no claim," she said. "Is [Adobe] really a third party in any meaningful sense?"

Lawson answered that the video privacy law encompasses those kinds of disclosures. "Congress has already considered in some ways how we should think about these questions," he said.

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