Second Circuit Clarifies VPPA Scope For Pixel Tracking Cases

Last week, the Second Circuit, in Solomon v. Flipps Media, Inc., joined the Third and Ninth Circuits in holding that "personally identifiable information" (PII) under the Video Privacy Protection Act (VPPA) is limited to information that would enable an ordinary person, without specialized knowledge or tools, to identify a consumer's video-viewing history.

In so ruling, the court specifically rejected the First Circuit's broader "reasonable foreseeability" standard, under which courts consider information to qualify as PII if it is reasonably likely to reveal a consumer's video history. By contrast, the "ordinary person" standard now adopted by the Second, Third, and Ninth Circuits requires that the information be readily understandable by an "ordinary" person as identifying a consumer's video activity.