Eichenberger v. ESPN, Inc., No. 15-35449 (9th Cir. 2017)
Annotate this Case"Personally identifiable information," pursuant to the Video Privacy Protection Act of 1998, 18 U.S.C. 2710(b)(1), means only that information that would readily permit an ordinary person to identify a specific individual's video-watching behavior. The Ninth Circuit affirmed the district court's dismissal of an action alleging that ESPN disclosed plaintiff's personally identifiable information in violation of the Act. Plaintiff alleged that ESPN violated the Act by giving a third party his Roku device serial number and by giving the identity of the video he watched. The panel held that plaintiff had Article III standing to bring his claim because section 2710(b)(1) was a substantive provision protecting consumers' concrete interest in their privacy. On the merits, the panel held that the information described in plaintiff's complaint did not constitute personally identifiable information under the Act. In this case, the information at issue could not identify an individual unless it was combined with other data in the third party's possession, data that ESPN never disclosed and apparently never even possessed.
Court Description: Video Privacy Protection Act. The panel affirmed the district court’s dismissal under Fed. R. Civ. 12(b)(6) of an action alleging that ESPN, Inc. disclosed the plaintiff’s “personally identifiable information” in violation of the Video Privacy Protection Act of 1998 by giving a third party, Adobe Analytics, the plaintiff’s Roku device serial number and by identifying videos he watched through the WatchESPN application. The panel rejected ESPN’s contention that the plaintiff lacked standing. The panel held that every disclosure of an individual’s “personally identifiable information” and video- viewing history offends the interests that the statute protects, and that the plaintiff need not allege any further harm to have standing. The panel held that “personally identifiable information” under the statute means only that information that would readily permit an ordinary person to identify a specific individual’s video-watching behavior. Applying that definition here, the panel concluded that an ordinary person could not use the information that ESPN allegedly disclosed to identify an individual, because the allegedly-disclosed information cannot identify an individual unless it is combined with other data in Adobe’s possession—data that ESPN never disclosed and apparently never even possessed. EICHENBERGER V. ESPN 3 The panel concluded that the plaintiff therefore failed to state a claim under Rule 12(b)(6).
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