In an opinion issued November 29, the Ninth Circuit Court of Appeals affirmed the dismissal of Chad Eichenberger’s lawsuit against ESPN for allegedly disclosing personal information.  The suit was originally filed in federal court in the District of Columbia in March of 2014, alleging that ESPN gave the personally identifiable information of consumers who watched the WatchESPN app on Roku to an Adobe Systems analytics unit in violation of the Video Privacy Protection Act of 1988.  The VPPA prohibits a “video tape service provider” from knowingly disclosing “personally identifiable information concerning any consumer of such provider.”

The information given to Adobe by ESPN included individuals’ Roku device serial numbers and the identity of videos watched on the app.  Adobe then used the information to identify specific consumers with existing information from a source other than ESPN.  The Ninth Circuit rejected ESPN’s argument that Eichenberger did not have standing to sue, reasoning that “[e]very disclosure of an individual’s ‘personally identifiable information’ and video-viewing history offends the interests that the [VPPA] protects.”  Nevertheless, the Ninth Circuit affirmed the lower court’s dismissal, concluding that the information obtained was not personally identifiable information.

The court reasoned that “personally identifiable information” must be more than information that simply shows an individual has watched certain videos—it must be information that actually can be used to identify an individual.  Without the existing information in Adobe’s system, which included “email addresses, account information, or Facebook profile information, including photos and usernames,” no “ordinary person” could readily identify the particular individual who watched the videos.  This “ordinary person” standard was set forth in a Third Circuit decision, In re Nickelodeon Consumer Privacy Litigation, 827 F.3d 262, 285 (3d Cir. 2016).