Getting a Handle on VPPA Exposure in the Wake of Hulu

Given all the Video Privacy Protection Act (VPPA) activity lately - in particular Hulu's failure to get the VPPA case against it dismissed on summary judgment - this is a good moment to take stock of where the exposure lies, and what can be done to avoid liability on the technical, development, and marketing side of websites and mobile apps.

The Insight From Hulu: Not all Unique IDs are Created Equal

The VPPA is meant to prevent the disclosure to third parties of one's video viewing history in a way that is personally identifiable. For websites and mobile apps, the recent litigation has revolved primarily around the sharing and transmission of unique IDs, and the extent to which such IDs are personally identifiable. The unique IDs that cause problems, at least using the recent summary judgment opinion in the Hulu case as a guide, are unique IDs that correspond to end-user accounts or actual people. In the case of Hulu, the IDs set by Comscore's tags were randomly assigned with no direct link to an individually identifiable end-user and did not correspond to any registered customer account.  As a result, the use of the Comscore tags on pages with video access did not violate the VPPA.  The court's reasoning was that such information could not be reasonably used to identify an individual. The claims involving the Comscore IDs have been dismissed from the Hulu case on summary judgment. 

The information sharing that has survived defendant's summary judgment in the Hulu case is the information historically found in Facebook's "c_user" and "lu" browser cookies, which could be linked to specific, registered Facebook users. The Facebook cookies were transmitted to Facebook by the end-user's browser on every occasion that the end-user visits a webpage where the 'Like' button is placed by the website developer. This transmission occurs on webpages where videos appear, and happens regardless of whether the 'Like' button is clicked. The information sent to Facebook, along with the potentially personally identifying cookies, includes the URL of the page, which typically identifies the exact video being watched.

The court denied Hulu's motion to dismiss plaintiffs' VPPA claims regarding data sharing with Facebook. Both sides are now gearing up to define and/or limit the contours of the relevant class.

(It should be noted that although Facebook has changed some of the cookie behaviors over time, and they are not exactly as described in the lawsuit at present, the behavior of the 'Like' button has, in most respects, not materially changed.)

The View from the Lab: How to Manage VPPA Risk

So where will the plaintiffs turn next? Based on what we have seen in our recent baseline reviews in the internal Holland & Knight Data Privacy Testing Lab, there are a number of JavaScript tags and mobile APIs/third-party code that we believe are on the radar of the plaintiffs' bar and which will likely become a focus for plaintiffs going forward.

The best way for companies to manage this risk is to make sure that on webpages that host streaming or downloadable videos, the company has removed JavaScript tags that would result in the transmission of unique identifiers to third-party entities that either: (i) have a registered account user base, like a social network, (ii) are known to engage in the process of personal data matching, or (iii) could be characterized as a data broker.  In the mobile context, it will be important to refrain from using third-party libraries or API's in such a way that results in the transmission of unique identifiers to the same types of entities.