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Posts Tagged ‘RedBox’

What Does Your Video Watching Behavior Say About You?

Posted on: December 18th, 2017

By: Jonathan Romvary

A federal court recently determined that the sharing of an individual’s device identification number and the videos watched does not violate federal privacy laws. In Eichenberger v. ESPN, Inc. , 2017 BL 427074, 9th Cir., No. 15-35449 (Nov. 29, 2017), the Ninth Circuit held that an individual’s Roku Inc. device serial number and a list of the ESPN videos watched does not qualify as personally identifiable information (PII) under the Video Privacy Protection Act (VPPA) such that ESPN’s sharing of the information with a third party did not violate VPPA protections.

What did the Court hold?

The three-judge panel held that while the plaintiff had standing under the Court’s Spokeo ruling, he could not continue with his suit because the shared information was not personally identifiable under the VPPA. The panel adopted and expanded the Third Circuit’s 2016 Viacom ruling that information can only be considered personally identifiable if an ordinary person could use it to pinpoint a specific individual’s video-watching behavior. Here, an individual would require the data to be combined with other personal information that ESPN never shared or possessed.

Why is this important?

The impact of the Ninth Circuit’s ruling may be far reaching. Nowadays, technology service providers and app developers are moving away from identifying their users by their names. They now utilize a variety of alphanumeric identifiers to identify their users, whether it is the unique identification number of the user’s device (see ESPN) or a unique user account identification number. Without more, the average user is unable to identify the person who watched. As one observer noted, this ruling may pave the way for companies such as Hulu, Netflix, Google and Facebook to optimize their user experience to provide more targeted marketing without violating federal statute.

In recent years, plaintiffs have filed a serious of class actions alleging violations of the VPPA against companies such as Fandango, Blockbuster, Overstock.com, Gamefly, Redbox, Best Buy, Netflix, and Hulu. The attractiveness of these suits is likely because plaintiffs can argue that violations are punishable by $2,500 in statutory damages per violation. However, as this court’s ruling indicates, every technological advancement away from the brick and mortar video rental stores away will make it harder for a plaintiff to sustain a successful claim.

However, the impact should also not be overstated. Despite this win for technology providers in the Ninth Circuit, there remains the matter of Yershov v. Gannett Satellite Information Network, Inc., No. 15-1719 (1st Cir. Apr. 29, 2016) which held that the disclosure of an individual’s viewing data along with the device’s unique identifier and device’s GPS information constituted PII such that the disclosure may violate the VPPA. The fact remains that there is still much uncertainty about the scope and viability of the VPPA.

If you have any questions or would like more information on this developing issue please contact Jonathan Romvary at [email protected].

TCPA Class Action on Opt-Out Confirmation Text Messages Dismissed

Posted on: July 15th, 2013

By: Matt Foree

A U.S. District Court in California recently dismissed a putative class action under the Telephone Consumer Protection Act (TCPA).  See Holt v. Redbox Automated Retail, LLC, Case No. 11cv3046 (S.D. Cal. 2013).  The matter concerned Defendant Redbox Automated Retail, LLC (Redbox) and its post opt-out confirmation text messages.  The original plaintiff in the matter, Kathleen Holt, who filed the complaint individually and on behalf of all others similarly situated, responded to an unsolicited text message from Redbox with an opt-out text message.  In response to Holt’s text, Redbox sent another text message confirming the opt-out and supplying a link to a website for more information.

In response to the plaintiffs’ putative class action Complaint for violations of the TCPA, Redbox filed a motion to dismiss, raising several arguments, including a challenge to the constitutionality of the TCPA.  Among other things, Redbox argued that prohibiting the confirmation messages would be a restriction on noncommercial speech inconsistent with Congress’s intent, which was to prohibit commercial telemarketing practices considered to be a risk to public safety and an invasion of privacy.  As a result of the constitutional challenge, the United States intervened in support of the constitutionality of the TCPA.

Redbox also relied on the Federal Communications Commission’s (FCC) ruling in the SoundBite Communications, Inc. (SoundBite) matter, which concerned a similar issue as in the Redbox case.  In the SoundBite matter, the FCC held that sending a one-time text message confirming a consumer’s request that no further text messages be sent does not violate the TCPA or the FCC’s rules as long as the confirmation text has certain characteristics, including that it merely confirm the opt-out request and not include marketing or promotional information and is the only additional message sent to the consumer after receipt of the opt-out request.  The SoundBite declaratory ruling is available here.

In analyzing Redbox’s motion to dismiss, the court determined that the plaintiffs failed to state a claim as a matter of law.  In so holding, the court relied on previous precedent, Ibey v. Taco Bell Corp., No. 12-cv-0583-H, 2012 WL 2401972 (S.D. Cal. June 18, 2012), in which the U.S. District Court for the Southern District of California found no violation for a confirming text based solely on its interpretation of the TCPA.  Specifically, that court held that “the TCPA does not impose liability for a single, confirmatory text message,” noting the purpose of the TCPA to “prevent unsolicited automated telemarking and bulk communications.”  Id. at 3.  The Ibey court also held that “[t]o impose liability under the TCPA for a single, confirmatory text message would contravene public policy and the spirit of the statute – prevention of unsolicited telemarketing in a bulk format.”  Id.  The court relied on Ibey to grant Redbox’s motion to dismiss, reasoning that the TCPA does not impose liability for the single, confirmatory text messages at issue, such that the plaintiffs failed to state a claim as a matter of law.

Additionally, the court addressed the plaintiffs’ argument that Redbox’s confirming texts include forbidden marketing and promotional information in the form of links to Redbox’s website.  The court, however, declined to adopt this “‘look through’ approach to liability under the TCPA,” opting instead to view the texts themselves to determine that they did not contain marketing or promotional information for products or services.  As a result, the court held that the texts do not contravene SoundBite and could not form the basis for liability under the TCPA.

Significantly, a large portion of Redbox’s motion to dismiss was devoted to a constitutional challenge to the TCPA.  In response to Redbox’s constitutional challenge, the United States intervened to file a brief in support of the constitutionality of the TCPA.  As such, the stage was set for the court to add to the developing case law regarding such challenges by addressing these arguments.  By relying on SoundBite and Ibey, however, the court avoided analyzing Redbox’s constitutional arguments.