The Video Privacy Protection Act is rapidly emerging as a preferred new litigation “weapon” for consumers, said a Foley Hoag analysis Friday. There has been an “uptick" in claims against companies for their use of Meta’s tracking tool under the VPPA, it said. “This trend suggests plaintiffs’ lawyers may be trying to stretch the VPPA more broadly than perhaps Congress intended.” Congress originally passed the VPPA in 1988, after a news organization obtained a list of films that Robert Bork’s family had rented at a local video rental store, without Bork’s consent, during the period surrounding his nomination to the Supreme Court, said the law firm. “Plaintiffs’ lawyers are now seeking to use the VPPA to prevent companies from disclosing information relating to their viewing habits online (and punish those that do),” it said. “The stakes are high.” The VPPA provides consumers with a private right of action, “and the potential damages can be steep,” it said. 18 U.S.C. § 2710(c)(1). Awards can include actual damages, punitive damages, reasonable attorneys’ fees and other litigation costs, it said. “Considering that a plaintiff class could consist of hundreds of thousands of consumers, companies that access consumer data have reason to watch these VPPA claims closely.”

AMC Networks said that the claimed sharing of a person's viewing history on the Shudder streaming service with Facebook through use of the Facebook pixel on Shudder's website "could never have occurred," AMC told the U.S. District Court for the Northern District of Illinois in a motion to dismiss the class action for lack of jurisdiction (docket 1:22-cv-04857) Friday. The plaintiff accessed Shudder exclusively through her Roku device, so even if Shudder's website used the Facebook pixel, pixel could not have transmitted the plaintiff's viewing data, defendant AMC said. Counsel for the plaintiff didn't comment Monday. Video streaming services are facing an array of Video Privacy Protection Act suits (see 2210260008).

A Video Privacy Protection Act complaint brought by Paramount+ subscribers doesn't plausibly allege the streaming service disclosed personally identifiable information, let alone knowingly, the streamer said Thursday in a reply in support of its motion to dismiss (docket 1:22-cv-03666). A cookie doesn't constitute PII within VPPA because it's not decipherable by ordinary people, it said. Even if it were PII, that cookie was authorized by the plaintiff and put there by Facebook and it was that cookie disclosing the information, Paramount told the U.S. District Court for the Northern District of Illinois. Last month in opposition to the motion to dismiss, the plaintiffs said Congress clearly intended PII under VPPA "to be broadly construed." It said since Paramount is the one that installed the Facebook tracking pixel, its claim it had no knowledge of the disclosure "is unconvincing." Video-streaming services are facing an array of VPPA suits (see 2210260008).

U.S. District Court for Northern California in San Francisco scheduled a Zoom hearing for Dec. 14 at 2 p.m. PST on a Nov. 7 motion to appoint the Beasley Allen law firm as interim lead counsel for plaintiffs in the June 17 privacy class action that seeks an injunction to bar Meta from intercepting or disseminating patient information collected through its Pixel tracking tool (see 2211150003), said a text-only entry Thursday (docket 3:22-cv-03580). The complaint alleges that when a patient communicates with a healthcare provider’s website where the Pixel tool is present, its source code causes the exact content of the patient’s communication with the healthcare provider to be redirected to Facebook in a fashion that identifies the user as a patient. The claims against co-defendants UCSF Medical Center and Dignity Health Medical Foundation (DHMF) would be severed from those against Meta and tried as separate cases if U.S. District Judge William Orrick grants an unopposed joint motion to do so. UCSF and DHMF “have concerns about defending themselves as part of a consolidated action with potentially five or more other cases against Meta,” said the Wednesday motion, requesting a Dec. 21 hearing to address it. “The other consolidated cases against Meta involve patients of other healthcare providers’ websites besides UCSF or DHMF.”

Lawyers for plaintiff Kahleia Dillon reached a stipulation with attorneys for defendant TransUnion, filing a joint motion Tuesday (docket 3:22-cv-01662) that asks the U.S. District Court for Southern California to extend to Dec. 22 TransUnion’s deadline for answering Dillon’s Oct. 26 privacy class action (see 2210280039). “Good cause exists” for the five-week deadline extension because TransUnion’s counsel “was only recently retained in this action and requires time to investigate the claims and defenses and to prepare an appropriate response,” said the motion. Dillon sued to “put an end” to what she alleged was the credit-reporting agency’s “unlawful use, examination, and recording” of consumers’ “biometric voice prints without express written consent,” in violation of the California Invasion of Privacy Act.

U.S. District Judge William Orrick for Northern California in San Francisco said Meta can file by Nov. 23 a supplemental response objecting to the declaration of an expert witness in support of an injunction to bar Meta from intercepting or disseminating patient information collected through its Pixel tracking tool, in Orrick’s order Monday (docket 3:22-cv-03580). The large privacy class action alleged in mid-June that when a patient communicates with a healthcare provider’s website where the Pixel tool is present, its source code causes the exact content of the patient’s communication with the healthcare provider to be redirected to Facebook in a fashion that identifies the user as a patient. The expert witness, Christo Wilson, a Northeastern University computer sciences associate professor, said in his Oct. 26 declaration that Meta could easily comply with an injunctive relief order by using its existing filtering tools and web-crawlers, with “slight modifications.” Meta also could “immediately disable any Pixel that it finds have sent patient data in the past, in addition to their existing practice of notifying the developer who created the Pixel,” it said. Meta objected to the Wilson declaration and asked Orrick to strike it because Meta lacked an opportunity to respond to it, said his order Monday. Though Orrick denied the request to strike the declaration, he will permit Meta to respond to it, it said. After that, “no further briefing with regards to the motion for a preliminary injunction shall be allowed,” said Orrick’s order. He will let the parties know later if he wants to hear argument on Meta’s supplemental declaration, it said.

U.S. District Judge Edward Davila for Northern California in San Jose scheduled a Feb. 16 initial case management conference in the Oct. 21 class action alleging Google violates the Illinois Biometric Information Privacy Act, said a clerk’s text-only notice Friday (docket 5:22-cv-06398). Davila was reassigned the case Thursday after plaintiff Ryan Segal didn't consent to having it heard by U.S. Magistrate Judge Virginia DeMarchi (see 2211040001). Segal’s complaint alleges Google, through Google Assistant, surreptitiously collects, uses and stores voiceprints of each individual who speaks to an enabled device.

The Oct. 21 class action alleging Google, through Google Assistant, “surreptitiously” collects, uses and stores voiceprints of each individual who speaks to an enabled device, in violation of the Illinois Biometric Information Privacy Act (see 2210260071), was reassigned randomly to U.S. District Judge Edward Davila for Northern California in San Jose, said a clerk’s order Thursday (docket 5:22-cv-06398). Davila is the judge presiding over the FTC’s lawsuit to block Meta’s Within Unlimited buy on antitrust grounds and who on Tuesday struck down Meta’s attempt to disqualify FTC Chair Lina Khan from the proceeding for her alleged bias against the company (see 2211030068). Ryan Segal, the plaintiff in the Google class action, declined Thursday to have his case tried before a magistrate judge, said a court document.

San Diego county resident Kahleia Dillon brought a class action Wednesday against TransUnion to “put an end” to what she alleged was the credit-reporting agency’s “unlawful use, examination, and recording” consumers’ “biometric voice prints without express written consent,” in violation of the California Invasion of Privacy Act (CIPA). TransUnion uses a system “that enables it to examine the voice of anyone that calls it to determine the truth or falsity of the callers’ statements,” said Dillon’s complaint (docket 3:22-cv-01662) in U.S. District Court for Southern California. The software TransUnion uses combines audio, voice and AI to compare the callers’ voiceprints with those in a “comprehensive database of recordings and metrics,” it said. The complaint seeks statutory damages of $1,000 for each CIPA violation, plus injunctive relief. TransUnion didn’t comment.

“Unbeknownst to users,” Google, through Google Assistant, “surreptitiously collects, uses, and stores" voiceprints of each individual who speaks to an enabled device, in violation of the Illinois Biometric Information Privacy Act, alleged a class action Friday (docket 5:22-cv-06398) in U.S. District Court for Northern California in San Jose. “Google does not disclose its biometric data collection to its users, nor does it ask users to acknowledge, let alone consent to, these practices,” said the complaint. Google’s misconduct “also was deceptive, unjust, and unlawful” because it deceived consumers “into providing valuable biometric information, which Google used for its own benefit, without consent or compensation, in violation of California law,” said the complaint. “Given Google’s ongoing deception on concealment of this practice,” plaintiff Ryan Segal believes “additional information supporting his claim will be revealed after a reasonable opportunity for discovery,” it said. Google didn’t comment Wednesday.