In Nicole Pileggi v. Washington Newspaper Publishing Company LLC, the D.C. Circuit unanimously affirmed the district court’s dismissal of a complaint alleging that news magazine and website Washington Examiner disclosed consumers’ personal information through a third-party pixel in violation of the Video Privacy Protection Act (“VPPA”).
In 2023, Pileggi alleged that the Examiner’s use of a third-party pixel on its site gave the third party the ability to collect website visitors’ personal information, including IP addresses and titles of videos they had watched. The District Court for the District of Columbia granted the Examiner’s motion to dismiss early last year, holding that Pileggi was not a “consumer” under the VPPA and that she failed to establish the requisite connection between her subscription to the Examiner’s newsletter and the video information allegedly disclosed.
The D.C. Circuit agreed. Judge Millett, joined by Judges Randolph and Wilkins, held that Nicole Pileggi is not a “consumer” under the VPPA, and that she failed to allege that the Examiner collected personally identifiable information related to videos she had accessed. On appeal, Pileggi chiefly argued that a plaintiff who purchases or rents any “good or service” from a third party and later watches an unrelated video provided by that party has a cause of action under the Act. As the D.C. Circuit observed, Pileggi failed to raise this argument in the district court; the panel nonetheless assessed it because the district court addressed the merits of the issue. Pileggi also argued, as she did in the court below, that a subscription to the Examiner’s newsletter was a sufficient connection to the videos on the website for her to be a “consumer” under the VPPA.
The D.C. Circuit rejected Pileggi’s broad interpretation of “consumer” under the statute. According to the panel, Pileggi did not become a “consumer” protected by the VPPA by merely visiting the Examiner’s website without subscribing to a video or comparable audio-visual service. The panel also characterized Pileggi’s contention that a person becomes a “consumer” under the VPPA by buying any good or service from an entity as a violation of the statutory text and a pathway to “haphazard and unreasoned line-drawing.”
Judge Randolph, who joined the majority’s opinion, filed a separate concurring opinion arguing that the case could have been dismissed via “a straighter path.” According to Judge Randolph, the Examiner is not a “video tape service provider” governed by the VPPA because its short-form videos are not “prerecorded video cassette tapes or similar audio visual materials.’” Seemingly nudging Congress, Judge Randolph argued that “[t]echnology has overtaken this federal statute and has rendered it largely obsolete. The VPPA addressed a different problem in a different time.”
Litigants should note that the Pileggi decision deepens a circuit split regarding interpretation of “consumer” under the VPPA. The D.C. Circuit and the Sixth Circuit have read the “consumer” provision as encompassing only consumers of audiovisual materials, whereas the Second and Seventh Circuits have adopted a broader reading that encompasses consumers of nearly any good or service (including free website accounts and e-mail updates).