• by Wendy Davis , Yesterday

TrillerTV on Monday urged the Supreme Court to turn away a streaming video subscriber who is seeking to appeal a lower court ruling that dismissed her video-privacy suit.

"The decision below is correct," TrillerTV argues, adding that the lower court's opinion is consistent with the wording and history of the Video Privacy Protection Act -- a 1988 law that prohibits video providers from disclosing users' personally identifiable video-viewing history without their consent.

TrillerTV's papers come in a dispute dating to 2022, when Detrina Solomon, a subscriber to TrillerVerzPass, and Flipps Media's TrillerTV, alleged in a class-action complaint that the company transmitted information about the videos she viewed -- along with her Facebook ID -- to Meta Platforms.

Solomon is one of numerous streaming video viewers who have sued newspapers, television companies and other streaming video providers for allegedly violating that law by embedding analytics tools like the Meta Pixel on their websites. Many of those lawsuits have been brought in the last three years.

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 appealed to the 2nd Circuit, arguing that TrillerTV disclosed Solomon's identity when it allegedly transmitted her Facebook ID to Facebook itself.

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.

Earlier this year, the 2nd Circuit sided with TrillerTV and upheld the dismissal, ruling that "personally identifiable information" means "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."

Solomon unsuccessfully asked the appellate court to reconsider, arguing that the ruling creates a loophole in the video privacy law.

In August, Solomon petitioned the Supreme Court to intervene, arguing that the text of the Video Privacy Protection Act prohibits companies from disclosing "information which identifies a person as having requested or obtained specific video materials," without reference to whether the information would allow an "ordinary person" to learn the video viewer's identity.

Counsel also argued in the petition that the case would give the Supreme Court an opportunity to interpret the phrase "personally identifiable information."

"As internet technology makes it easier than ever for large tech companies to obtain more data about ordinary Americans, this Court should spell out when those disclosing such information may do so without fear of liability," Solomon's counsel wrote.

At least two other federal appellate courts -- the 3rd Circuit and 9th Circuit have ruled that the Video Privacy Protection Act only bars companies from disclosing data that would allow an "ordinary person" to make an identification.

But the 1st Circuit allowed an app user to proceed with a video-privacy lawsuit over the alleged disclosure of his GPS data, device identifier and titles of the videos he viewed.

TrillerTV is asking the Supreme Court to avoid taking up the dispute for several reasons, including that the case is a "poor vehicle" for resolving the scope of the video privacy law.

Among other arguments, TrillerTV says that the central question in the dispute is "of limited and diminishing significance, because the technology industry can moot it through consent forms."

"In response to the slew of class action suits, online video content providers are now implementing consent forms," TrillerTV argues, adding that because the video privacy law has a two year statute of limitations, "consent forms may soon moot this issue entirely."