The Ninth Circuit recently joined the Third Circuit in defining PII under the VPPA as “information that would readily permit an ordinary person to identify a specific individual’s video-watching behavior.” In the case, Eichenberger v. ESPN, Inc., the court found that because an ordinary person could not have identified the plaintiff from the information ESPN divulged to a third party (the plaintiff’s Roku serial device number and video history), the plaintiff failed to state a claim. For that reason the Ninth Circuit affirmed dismissal of the VPPA claim.
The Ninth Circuit also rejected the First Circuit’s “reasonably and foreseeably likely to identify an individual” test, stating that the ordinary person test “better informs video service providers of their obligations under the VPPA.” Thus, the First Circuit remains the only circuit-level court to adopt the “reasonably and foreseeably likely” test, while both the Ninth and Third Circuits have applied the ordinary person test to the VPPA’s definition of PII – “information which identifies a person as having requested … video materials.”
Putting It Into Practice: Eichenberger is a reminder that what information is considered “personal” is hotly contested in courts, and will likely continue to be for the foreseeable future. Companies should take this into account when developing their information collection and use practices.