PHILADELPHIA – When the U.S. Court of Appeals for the Third Circuit ruled
in a class action lawsuit against Google and Viacom that alleged the companies
had violated users’ privacy, there were several issues that the judges had to
When it came to accusations that the companies violated state and
federal laws, including the Video Privacy Protection Act (VPPA), attorney
Drew Crawford told the Pennsylvania
Record that the judges didn’t really put the privacy issue to rest in the June 27 decision. Crawford is an associate with King and Spaulding in Washington, D.C.
Drew Crawford | Courtesy of King and Spaulding
“Judges are always cautious, and they try not to issue
sweeping decisions. I was surprised that they went to such great lengths to
interpret the (VPPA) and its history,” Crawford said.
“They open it up in the
last paragraph and suggest that this is a very specific ruling, but in the
meantime, companies that offer digital streaming should think closely about
The question in this case boils down to: What exactly is
personally identifiable information?
In their lawsuit, the plaintiffs said that
Viacom was getting information from users at Nick.com and the company was then
sharing the information with Google.
With Viacom’s information, they alleged,
Google could then piece information together, with the user’s video-watching
history, to find out who specific users were. The judges of the Third Circuit
said that the information in question was not considered personally
“They said VPPA was passed to give private citizens a right
of action when their video rental history was disclosed. They said that ‘based
on the way (the VPPA) is written, we can’t say it is analogous enough to
constitute personally identifiable information,’” Crawford said.
“The VPPA can’t
be read broadly enough to apply to this new situation.”
The ruling sets a precedent, as the Third Circuit is the first circuit court to address these issues, Crawford
“Internet service providers have a lot of information here
and there, like IP addresses. With enough detective work, someone could likely
figure things out. But, just because a company’s website collects cookies, that
doesn’t give the general public a cause of action,” Crawford said.
probably very likely that in the future there will be a new piece of
information that may cause a judge to say ‘That’s enough, you just crossed a
Ultimately, judges Franklin S. Van Antwerpen, Patty
Schwartz and Julio Fuentes upheld the U.S. District Court for the District of New Jersey’s
dismissal of the allegations against Google, including claims that the company
violated users’ privacy by allegedly tracking the sites that young children
The decision notes that claims under several legal acts,
including the Wiretap Act, the Stored Communications Act and the California
Invasion of Privacy Act, as well as the New Jersey Computer Related Offenses
Act, do not stand up to scrutiny. The judges sent the decision regarding claims
against Viacom back to the lower court for reconsideration.
In the decision, judges wrote that the law permits
plaintiffs to sue only a person who disclosed the information, not a person who
They also noted that the
restriction against divulging personally identifiable information applies only when an ordinary person would be
able to identify a specific person’s watching behaviors. Digital identifiers like IP addresses, they
wrote, are not covered under the VPPA.
Attorneys Douglas A.
Campbell and Frederick D. Rapone of Campbell and Levine LLC in
Pittsburgh were involved in the defense of this case. Attorneys from Kansas, Missouri, New Jersey, Illinois and Texas were also involved in the defense.