Last week, the Third Circuit adopted a narrow definition of “personally identifiable information,” or “PII,” under the Video Privacy Protection Act (“VPPA”), joining the majority of district courts that have addressed similar issues.  The VPPA defines PII as information that “identifies a person as having [obtained a video]” from a video tape service provider (“VTSP”).

In an appeal from the multi-district litigation In re Nickelodeon Consumer Privacy Litigation, the Third Circuit ruled that digital identifiers such as MAC addresses and IP addresses are not PII because the statutory definition of that term “applies only to the kind of information that would readily permit an ordinary person to identify a specific individual’s video-watching behavior.” 
Continue Reading Third Circuit Takes Narrow View of PII Under the VPPA

As protests have continued across the nation in the wake of back-to-back decisions by grand juries in Missouri and New York not to indict white police officers for their involvement in the deaths of unarmed black citizens, civil rights advocates, along with state leaders and the federal government, are exploring measures to better relationships between law enforcement and communities of color.  Just last week, the Department of Justice released a revised version of its Guidance Regarding the Use of Race by Federal Law Enforcement Agencies.  Yesterday afternoon, President Obama signed an Executive Order to create the Task Force on 21st Century Policing, and following the Michael Brown jury decision, the President proposed a three-year $263 million investment package to increase, among other things, the use of body-worn cameras.

In light of the events leading to Eric Garner’s death, however, which were captured by mobile video in their entirety, there has been skepticism about the efficacy of body-worn cameras in preventing such fatal interactions with the police and also in providing sufficient evidence to juries.  Privacy advocates, along with police officers, have expressed concern about the new technology as well.  On the one hand, body cameras have greater potential to invade privacy if they are used in homes or to film bystanders, suspects, and victims during what can be volatile and extreme encounters.  On the other hand, cameras could reduce police use of force while protecting officers from false accusations of misconduct.  Moreover, cameras could provide vital data used over time to monitor, measure, and improve departments’ institutional practices.  On balance, video cameras on police officers seem to be a good thing with short- and longer-term benefits, but only if they are deployed within a policy framework that prioritizes citizens’ privacy.
Continue Reading Looking at Police-Community Relations Through the Lens of Body-Worn Cameras

The United States District Court for the Eastern District of Michigan has allowed a putative class action under Michigan law to proceed against several magazine publishers that allegedly sold lists of their customers’ names, addresses, and subscription choices to third parties.  Earlier this week, in a case styled Halaburda v. Bauer Publishing Co., Judge Steeh of the Eastern District denied a motion to dismiss by defendants Bauer, Hearst Communications and Time, Inc., which had argued that the plaintiffs’ lacked standing to sue in federal court and that the complaint did not state a claim upon which relief could be granted. 

The plaintiffs sued under the Michigan Video Rental Privacy Act (“VRPA”), a statute that, despite its name, generally prohibits companies “engaged in the business of selling at retail, renting or lending books or other written materials, sound records, or video recordings” from disclosing “a record or other information concerning the purchase, lease, rental, or borrowing of those materials by a customer that indicates the identity of the customer.”  The plaintiffs alleged that the publisher defendants “sell[] at retail . . . written materials” and that the defendants have disclosed information about subscription choices in violation of the statute’s disclosure prohibition. 

In their motion to dismiss, the defendants argued that the plaintiffs had not sufficiently alleged standing to bring their suit because the complaint did not plead a cognizable “injury” to plaintiffs.  The court rejected this argument, holding that because the VRPA allows a plaintiff to recover statutory damages, no allegation of actual injury is necessary for standing under the U.S. Constitution or under the statute itself.  In reaching this conclusion, the court distinguished Sterk v. Best Buy Stores (N.D. Ill Oct. 17, 2012), which held that plaintiffs suing under the federal Video Privacy Protection Act (“VPPA”) had failed to establish an injury sufficient for standing.  The court noted that while the VPPA contains language requiring an actual injury (plaintiffs must be “aggrieved” to recover), the VPRA does not.


Continue Reading Action Against Magazine Publishers for Sale of Customer Lists Allowed to Proceed