ESPN Prevails In Battle Over Video Privacy

In a victory for ESPN, a federal appellate court ruled that the company didn't violate a federal video privacy law by allegedly transmitting information about consumers, including their Roku serial numbers, to Adobe.

A three-judge panel of the 9th Circuit Court of Appeals said in a decision issued Wednesday that Roku serial numbers aren't personally identifiable information, writing that an "ordinary person" wouldn't be able to determine someone's identity simply by knowing a device serial number.

The decision could influence the outcome of other video privacy cases, including a lawsuit alleging that smart TV manufacturer Vizio violated federal law by allegedly sharing information about consumers with ad-tech companies and data brokers.

The ruling involving ESPN stems from a lawsuit filed by Chad Eichenberger in 2014, when he alleged that the company transmitted the serial number of his Roku, along with the videos he watched, to Adobe for analytics purposes. He alleged that ESPN violated the Video Privacy Protection Act -- a 1988 law that prohibits video rental companies from disclosing personally identifiable information about people's video-watching history.

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U.S. District Court Judge Thomas Zilly in Seattle dismissed the lawsuit three years ago, ruling that transmitting “anonymous” data doesn't violate the Video Privacy Protection Act, which prohibits video rental companies from disclosing users' personally identifiable information. Congress passed the law in 1988, after a Washington D.C. newspaper obtained and published the video rental records of Supreme Court nominee Robert Bork.

Eichenberger then appealed to the 9th Circuit. He argued that device identifiers should be considered personally identifiable because they can be used by companies like Adobe to reveal a person's identity.

The 9th Circuit rejected that argument, writing that Congress didn't intend for the video privacy law to cover anonymous identifiers like Roku serial numbers.

"It is true that today’s technology may allow Adobe to identify an individual from the large pool by using other information," the panel wrote. "But the advent of the Internet did not change the disclosing-party focus of the statute. And we are not persuaded that the 1988 Congress intended for the VPPA to cover circumstances so different from the ones that motivated its passage."

Last year, a different appellate court -- the 1st Circuit -- ruled that Gannett may have violated the video privacy law by allegedly transmitting device identifiers, GPS data and video viewing history to Adobe. That ruling stemmed from a lawsuit brought by Massachusetts resident Alexander Yershov, who alleged that he downloaded the USA Today app. (Yershov dropped the case earlier this year.)

The 9th Circuit judges who ruled in favor of ESPN said their ruling wasn't necessarily inconsistent with the decision involving Gannett, because the ESPN was not alleged to have transmitted GPS data. That type of location data can allow "most people" to identify someone's home and work address, according to the court.

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