Courts Differ Over Application of ‘Ordinary Person’ Standard, Lawyer Says
Though many courts have adopted the ordinary-person standard when interpreting Video Privacy Protection Act (VPPA) cases, differences remain in how judges apply it, even in cases with “nearly identical allegations,” Troutman privacy lawyer Dustin Taylor said in a post.
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The ordinary-person standard says that a violation of the 1988 federal statute has occurred if the average person could use the disclosed personal information to identify a person’s video-viewing history, without using special knowledge or tools, the blog said.
Instead of a circuit-level split, one “has emerged at the district‑court level,” with courts that use the ordinary person standard “but reach different results," said Taylor.
He described two cases from the U.S. District Court for Northern California where judges decided an ordinary person could determine a plaintiff's identity using the personally identifiable information (PII) disclosed. Meanwhile, the U.S. District Court for Western Michigan issued a similar decision to the California courts, though without officially adopting the ordinary-person standard.
Taylor said these district court decisions are “seemingly at odds” with a 2nd U.S. Circuit Court of Appeals decision in June, where the court ruled the ordinary-person standard “requires such a person ‘be able to understand the actual underlying code communication itself.’”
But the U.S. District Court for Southern New York aligned with the 2nd Circuit and dismissed claims alleging the Meta Pixel disclosed PII, finding that the average person would be unable to decipher pixel-transmitted information, like a Facebook ID.
“Resolution of this split is unlikely in the near term,” Taylor said, noting that the California decisions haven’t been appealed, and the U.S. Supreme Court declined to weigh in on VPPA (see 2512080052). Given this, “we are unlikely to see a decrease in VPPA litigation any time soon.”
Taylor also said that the 3rd (see 2508200050) and 9th U.S. Circuit Courts of Appeal have adopted the ordinary person standard along with the 2nd Circuit, but the 1st U.S. Circuit Court of Appeals uses the ‘reasonable foreseeability’ standard.
This standard holds that PII is defined as any information “disclosed to a third party that is ‘reasonably and foreseeably likely to reveal which videos’” a plaintiff has watched. As such, even if a person is not identified, there is a violation of the VPPA if information is likely to reveal the videos a particular person obtained, Taylor said.
A circuit split on this issue “has not (yet) occurred,” he said, as “relatively few courts” have adopted the reasonable foreseeability standard.