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Thursday, September 19, 2019

Attorney: Plaintiffs lawyers using 20-year-old law designed to regulate data collection in filing lawsuits

By Anna Aguillard | Dec 10, 2015

ATLANTA (Legal Newsline) – Two recent civil suits are reminding Internet companies how important it is to adequately disclose their methods of collecting usage information to their users to protect themselves from being sued, one attorney says.

Suits filed against both Google and Vizio show that plaintiffs lawyers will dig deep for laws under which they can file claims. In Vizio's case, plaintiffs are filing suits under a law designed to regulate data collected by movie rental stores that was created nearly 20 years ago.

Andrew G. Phillips, senior counsel at McGuire Woods LLP, said the law at issue is the Video Privacy and Protection Act (VPPA) of 1988.

“The act generally bars a ‘video tape service provider’ from ‘knowingly’ disclosing customers’ rental history,” Phillips told Legal Newsline. “[It] has an interesting history.”

The act was passed after a video store leaked then-U.S. Supreme Court nominee Robert Bork’s video rental history to the Washington Post. Now, the law is being used to challenge the legality of online activity collection.

Two cases filed in a California federal court in early November, Watts v. Vizio Holdings and Reed v. Cognitive Media, claim that Vizio Smart TVs are capturing personalized information from their users, and that Vizio is selling this data to advertisers.

These cases arose following a report by Propublica that revealed Vizio was tracking data through a feature that, Phillips noted, is enabled by default.

“Congress certainly didn’t envision the act being used to challenge the collection of online activity. After all, the worldwide web wasn’t created until a year later in 1989 and the first website was created in 1990,” Phillips said.

He said the language of the act can be “broadly interpreted” to include the streaming of online data.

“Plaintiffs in these actions allege that Vizio is a ‘video tape service provider’ because it is in the business of providing ‘similar audio visual materials' -- namely, streaming content such as Netflix and Hulu,” Phillips said.

Phillips said filing under VPPA is sometimes successful. However, recent courts have disagreed on the validity of claims made under the act.

Some courts have allowed similar claims to survive a motion to dismiss.

Hulu recently had VPPA claims against it dismissed with prejudice on summary judgment because the court found Hulu did not knowingly share customers’ personally identifiable viewing histories, Phillips said.

The plaintiffs filing suit against Google are not filing under the VPPA. In In re: Google Inc. Cookie Placement Consumer Privacy Litigation, which was recently revived by the U.S. Court of Appeals for the Third Circuit after a trial court dismissed it, plaintiffs argue that Google intentionally placed cookies in browsers without public knowledge. The court ruled that the manner in which Google placed cookies violated privacy laws.

The Third Circuit's decision in the Google case is precedential, meaning it will carry major impact in future litigation brought in the area of data privacy litigation.

Phillips said although the suits were filed under different laws, both point to the importance of “clearly articulated privacy policies.”

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