Recent months have seen a growing trend of data privacy class actions asserting claims for alleged violations of federal and state video privacy laws.  In this year alone, plaintiffs have filed dozens of new class actions in courts across the country asserting claims under the federal Video Privacy Protection Act (“VPPA”), Michigan’s Preservation of Personal Privacy Act (“MPPPA”), and New York’s Video Consumer Privacy Act (“NYVCPA”).

Congress passed the VPPA in 1988 after a Supreme Court nominee’s video tape rental history was published during the nomination process.  The Michigan and New York legislatures followed suit, enacting the MPPPA in 1988 and the NYVCPA in 1993 to regulate the disclosure of information identifying which specific individuals obtained which specific written, audio, visual, or other materials, depending on the provision at issue.  Though originally drafted with older technology like books, films, and video cassette tapes in mind, these laws are now being used to challenge how companies conduct business online.

The companies targeted by these lawsuits span a wide array of industries, including technology, news and media, gaming, entertainment, publishing, law, and digital health.  Some have been accused of selling customers’ information to data aggregators and brokers, potentially exposing the affected customers to spam and fraud in addition to compromising their privacy.  Others face litigation over use of third-party technology for purposes of measurement, analytics, and marketing on their own websites, apps, and servers.

These lawsuits raise a host of complex legal and technical questions, which may include, for example:

  • The extent to which a specific statutory provision invoked by the plaintiff can be privately enforced through a civil right of action;
  • Whether the defendant is the type of service provider subject to the law;
  • Whether, within the technological context of the specific case, the data at issue contains personally identifying information within the meaning of the law;
  • The extent to which statutory exceptions or exemptions may apply;
  • Potential limitations on the types of remedies available; and
  • Whether the plaintiff consented to the challenged data practices.

And in the class action context, whether any of these issues are suitable for adjudication on a classwide basis presents a separate set of issues.  In addition, companies should be aware of risks posed by potential remedies like statutory damages, punitive damages, and attorneys’ fees, which can quickly add up to substantial exposure in a class action.

This area of the law is evolving, but as new lawsuits continue to be filed and earlier-filed ones proceed to rulings on the merits, we will see a growing body of case law that will shape how video privacy laws apply to online data practices in the digital age.

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Photo of Kathryn Cahoy Kathryn Cahoy

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She regularly defends clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved significant victories…

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She regularly defends clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved significant victories for clients in the technology, entertainment, consumer product, and financial services industries. In addition, Kate has substantial experience litigating cases brought under California’s Section 17200 and other consumer protection, competition, and privacy laws, including the Sherman Act, California Consumer Privacy Act (CCPA), California Invasion of Privacy Act (CIPA), Wiretap Act, Stored Communications Act, Children’s Online Privacy Protection Act (COPPA), Video Privacy Protection Act (VPPA), and common law and constitutional rights of privacy, among others.

Photo of Eric Bosset Eric Bosset

Eric Bosset is a senior counsel whose practice encompasses a broad range of complex litigation matters, with an emphasis on (1) privacy, data security and consumer protection, (2) employment and ERISA, and (3) financial products and services. Eric has extensive experience in class…

Eric Bosset is a senior counsel whose practice encompasses a broad range of complex litigation matters, with an emphasis on (1) privacy, data security and consumer protection, (2) employment and ERISA, and (3) financial products and services. Eric has extensive experience in class actions, MDL proceedings, and other multi-party lawsuits. His trial victories include a jury verdict in an employment class action lawsuit that The National Law Journal ranked among the 25 most notable defense verdicts of the year.

Privacy and Consumer Protection

Eric was named “Most Valuable Player” in Privacy & Consumer Protection by Law360. He has an extensive practice representing Internet service providers, publishers and advertisers in class action litigation involving claims of unauthorized collection and disclosure of personally identifiable information (“PII”). He has successfully represented Microsoft, AOL, CBS, McDonald’s, Mazda, the Indianapolis Colts, and other companies in obtaining the dismissals of putative class action lawsuits that asserted federal law claims under the Electronic Communications Privacy Act (“ECPA”), Computer Fraud and Abuse Act (“CFAA”), and Video Privacy Protection Act (“VPPA”), as well as state law claims under the Illinois Biometric Information Privacy Act (“BIPA”) and for unfair practices, trespass, and invasion of privacy.

Eric also represents companies in connection with matters arising under the Fair Credit Reporting Act (“FCRA”), Fair and Accurate Credit Transaction Act (“FACTA”), Telephone Consumer Protection Act (“TCPA”), and other consumer protection statutes.

Employment and ERISA

Eric has extensive experience defending companies in individual and class action litigation brought under federal and state laws concerning discrimination, retaliation, whistleblowing, wage and hour disputes, and wrongful termination, as well as in class action litigation involving the Employee Retirement Income Security Act (“ERISA”). Eric has the rare distinction of having tried and won a jury verdict in a class action lawsuit alleging “pattern or practice” discrimination on the basis of age in connection with a corporate reduction in force. Bush, et al. v. Deere & Company (C.D. Ill.). He also secured the reversal on appeal of a class certification order in a “stock drop” lawsuit that claimed breaches of fiduciary duty in the administration of a company retirement savings plan. In re Schering Plough Corporation ERISA Litig., 589 F.3d 585 (3d Cir. 2009). Eric also represents clients in EEOC investigations.

Financial and Fintech

Eric’s practice includes the representation of financial and fintech companies on a broad array of civil litigation, arbitration, and regulatory enforcement matters relating to financial products and services, including matters for Wells Fargo Bank, JPMorgan Chase, Synchrony Bank, Envestnet, Yodlee, and MidFirst Bank.

Photo of Kanu Song Kanu Song

Kanu Song is a litigator who represents clients in the technology and life sciences industries in complex, high-stakes matters, including data privacy class actions, trade secret litigation, copyright and trademark disputes, and actions brought under unfair competition and consumer protection laws. She has…

Kanu Song is a litigator who represents clients in the technology and life sciences industries in complex, high-stakes matters, including data privacy class actions, trade secret litigation, copyright and trademark disputes, and actions brought under unfair competition and consumer protection laws. She has substantive experience in all stages of litigation, including arbitrations and appeals, with a strong track record of success on dispositive motions.

Kanu also maintains an active pro bono practice focused on serving women and children, and assisting individuals and small businesses with intellectual property disputes.