• by Wendy Davis  @wendyndavis, Yesterday

Streaming video subscriber Detrina Solomon is asking a federal appellate court to reconsider her claim that Flipps Media's TrillerTV violated a video privacy law by allegedly sharing information about her viewing history with Meta Platforms, via its tracking pixel.

Last month, a three-judge panel of the 2nd Circuit Court of Appeals upheld a trial judge's decision dismissing Solomon's class-action complaint.

Her lawyers now say that ruling wrongly created a loophole in the video privacy law, and are asking the entire 2nd Circuit to re-hear the matter.

The dispute between Solomon, a subscriber to TrillerVerzPass, and TrillerTV dates to 2022, when she alleged in a class-action complaint that the company transmitted information about the videos she viewed -- along with her Facebook ID -- to Meta Platforms.

She claimed that the alleged data sharing violated the Video Privacy Protection Act -- a 1988 law that prohibits video providers from disclosing users' personally identifiable video-viewing history. In the last three years, numerous plaintiffs throughout the country have sued a range of businesses offering video clips -- including newspapers, television companies and other streaming video providers -- for allegedly violating that law by embedding analytics tools like the Meta Pixel on their websites.

U.S. District Court Judge Joan Azrack in Central Islip, New York, dismissed Solomon's complaint, ruling that even if she proved her allegations, they wouldn't show that her Facebook ID was “personally identifiable.”

Solomon then appealed to the 2nd Circuit, arguing that TrillerTV disclosed Solomon's identity to Meta Platforms' Facebook by transmitting her Facebook ID to the company.

TrillerTV countered that the complaint didn't spell out how an “ordinary person” could access or use Solomon's Facebook ID, which was associated with Meta's cookie on her browser.

The streaming service also argued that the complaint didn't say whether she used her real name when creating her Facebook account.

The 2nd Circuit sided with TrillerTV and upheld the dismissal.

“We conclude that 'personally identifiable information' encompasses information that would allow an ordinary person to identify a consumers video-watching habits, but not information that only a sophisticated technology company could use to do so,” Circuit Court Judge Denny Chin wrote in an opinion joined by Judges William Nardini and Reena Raggi.

Solomon's lawyers argue in the new petition that the ruling is inconsistent with lawmakers' intentions.

“The 'ordinary person' standard creates a loophole that is unsupported by the statutory text and contrary to the purpose of the statute -- a loophole that companies are exploiting to provide granular information about their users’ video watching to Facebook without those users’ consent,” counsel argues.

Counsel also notes that the 1st Circuit Court of Appeals said in a 2016 ruling that pseudonymous device identifiers, combined with location data, were personally identifiable information.

Some other appellate courts have ruled that pseudonymous data such as a serial number isn't in itself personally identifiable -- though in those cases the pseudonymous data wasn't disclosed to the same company that created the identifier. For instance, the 9th Circuit Court of Appeals ruled that a Roku serial number that was allegedly transmitted to Adobe was not personally identifiable information because an “ordinary person” wouldn't be able to determine someone's identity based on a Roku serial number.

Alan Butler, executive director and president of the advocacy group Electronic Privacy Information Center, previously criticized 2nd Circuit's ruling for TrillerTV. 

“This 'ordinary person' standard comes from nowhere,” he told MediaPost last month. “It's not in the statute, and it's not the right way to think about how to define personally identifiable information.”

Butler added that the Facebook ID is more than simply “identifiable” by Facebook, because that ID actually identifies a particular account.