In Re: Nickleodeon Consumer Pr v. , 827 F.3d 262 ( 2016 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 15-1441
_______________
IN RE: NICKELODEON
CONSUMER PRIVACY LITIGATION
A.V.; C.A.F.; C.T.F.; M.P.; T.P.; K.T.; N.J.; T.M.;
STEPHANIE FRYAR,
Appellants
_______________
On Appeal from the District Court
for the District of New Jersey
(Multidistrict Litigation No. 13-md-2443
District Court No. 2-12-cv-07829)
District Judge: Honorable Stanley R. Chesler
_______________
Argued December 8, 2015
Before: FUENTES, SHWARTZ, and VAN ANTWERPEN,
Circuit Judges
(Opinion Filed: June 27, 2016 )
Jason O. Barnes, Esq. [ARGUED]
Barnes & Associates
219 East Dunklin Street, Suite A
Jefferson City, MO 65101
Douglas A. Campbell, Esq.
Frederick D. Rapone, Esq.
Campbell & Levine, LLC
310 Grant Street, Suite 1700
Pittsburgh, PA 15219
Barry R. Eichen
Evan J. Rosenberg, Esq.
Eichen Crutchlow Zaslow & McElroy, LLP
40 Ethel Road
Edison, NJ 08817
James P. Frickleton, Esq.
Edward D. Robertson, III, Esq.
Bartimus Frickleton Robertson, P.C.
11150 Overbrook Road, Suite 200
Leawood, KS 66211
Edward D. Robertson, Jr., Esq.
Mary D. Winter, Esq.
Bartimus Frickleton Robertson, P.C.
715 Swifts Highway
Jefferson City, MO 65109
2
Mark C. Goldenberg, Esq.
Thomas Rosenfeld, Esq.
Goldenberg Heller Antognoli & Rowland, PC
2227 South State Route 157
Edwardsville, IL 62025
Adam Q. Voyles, Esq.
Lubel Voyles LLP
5020 Montrose Boulevard, Suite 800
Houston, TX 77006
Attorneys for Appellants
Alan J. Butler, Esq. [ARGUED]
Marc Rotenberg, Esq.
Electronic Privacy Information Center
1718 Connecticut Avenue, N.W., Suite 200
Washington, DC 20009
Attorneys for Amicus Curiae
Electronic Privacy Information Center
Jeremy Feigelson, Esq.
Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
David A. O’Neil, Esq. [ARGUED]
Debevoise & Plimpton LLP
801 Pennsylvania Avenue, N.W., Suite 500
Washington, DC 20004
3
Seth J. Lapidow, Esq.
Stephen M. Orlofsky, Esq.
Blank Rome LLP
301 Carnegie Center, Third Floor
Princeton, NJ 08540
Attorneys for Appellee Viacom, Inc.
Colleen Bal, Esq.
Michael H. Rubin, Esq. [ARGUED]
Wilson, Sonsini, Goodrich & Rosati, PC
One Market Street
Spear Tower, Suite 3300
San Francisco, CA 94105
Tonia O. Klausner, Esq.
Wilson Sonsini Goodrich & Rosati, PC
1301 Avenue of the Americas, 40th Floor
New York, NY 10019
Jeffrey J. Greenbaum, Esq.
Joshua N. Howley, Esq.
Sills, Cummis & Gross P.C.
One Riverfront Plaza
Newark, NJ 07102
Attorneys for Appellee Google, Inc.
4
Jeffrey B. Wall, Esq. [ARGUED]
Sullivan & Cromwell LLP
1700 New York Avenue, N.W., Suite 700
Washington, DC 20006
Attorney for Amicus Curiae
Chamber of Commerce of the United States of America
_______________
OPINION OF THE COURT
_______________
FUENTES, Circuit Judge:
Table of Contents
I. Background....................................................................... 8
A. Internet Cookie Technology ................................... 9
B. Factual Allegations ............................................... 11
C. Procedural History in the District Court ............... 15
II. Arguments and Claims Foreclosed by Our
Decision in Google ......................................................... 19
A. Article III Standing ............................................... 20
B. The Federal Wiretap Act ...................................... 25
C. The California Invasion of Privacy Act................ 29
D. The Federal Stored Communications Act ............ 30
5
E. The New Jersey Computer Related
Offenses Act ......................................................... 32
III. Claims Raising Issues Beyond Those We
Addressed in Google ...................................................... 34
A. The Video Privacy Protection Act ........................ 35
1. Whether Google is an Appropriate
Defendant under the Act................................ 38
2. Whether Viacom Disclosed “Personally
Identifiable Information” ............................... 42
B. Intrusion upon Seclusion ...................................... 64
1. The Plaintiffs’ Intrusion Claim Is Not
Preempted ...................................................... 65
2. The Plaintiffs Have Adequately Alleged
an Intrusion Claim ......................................... 69
IV. Conclusion ...................................................................... 75
Most of us understand that what we do on the Internet
is not completely private. How could it be? We ask large
companies to manage our email, we download directions from
smartphones that can pinpoint our GPS coordinates, and we
look for information online by typing our queries into search
engines. We recognize, even if only intuitively, that our data
has to be going somewhere. And indeed it does, feeding an
entire system of trackers, cookies, and algorithms designed to
capture and monetize the information we generate. Most of
the time, we never think about this. We browse the Internet,
and the data-collecting infrastructure of the digital world
hums along quietly in the background.
6
Even so, not everything about our online behavior is
necessarily public. Numerous federal and state laws prohibit
certain kinds of disclosures, and private companies often
promise to protect their customers’ privacy in ways that may
be enforceable in court. One of our decisions last year, In re
Google Inc. Cookie Placement Consumer Privacy Litigation,1
addressed many of these issues. This case addresses still
more.
This is a multidistrict consolidated class action. The
plaintiffs are children younger than 13 who allege that the
defendants, Viacom and Google, unlawfully collected
personal information about them on the Internet, including
what webpages they visited and what videos they watched on
Viacom’s websites. Many of the plaintiffs’ claims overlap
substantially with those we addressed in Google, and indeed
fail for similar reasons. Even so, two of the plaintiffs’
claims—one for violation of the federal Video Privacy
Protection Act, and one for invasion of privacy under New
Jersey law—raise questions of first impression in our Circuit.
The Video Privacy Protection Act, passed by Congress
in 1988, prohibits the disclosure of personally identifying
information relating to viewers’ consumption of video-related
services. Interpreting the Act for the first time, we hold that
the law permits plaintiffs to sue only a person who discloses
such information, not a person who receives such information.
We also hold that the Act’s prohibition on the disclosure of
personally identifiable information applies only to the kind of
information that would readily permit an ordinary person to
identify a specific individual’s video-watching behavior. In
1
806 F.3d 125 (3d Cir. 2015).
7
our view, the kinds of disclosures at issue here, involving
digital identifiers like IP addresses, fall outside the Act’s
protections.
The plaintiffs also claim that Viacom and Google
invaded their privacy by committing the tort of intrusion upon
seclusion. That claim arises from allegations that Viacom
explicitly promised not to collect any personal information
about children who browsed its websites and then, despite its
assurances, did exactly that. We faced a similar allegation of
deceitful conduct in Google, where we vacated the dismissal
of state-law claims for invasion of privacy and remanded
them for further proceedings. We reach a similar result here,
concluding that, at least as to Viacom, the plaintiffs have
adequately alleged a claim for intrusion upon seclusion. In so
doing, we hold that the 1998 Children’s Online Privacy
Protection Act, a federal statute that empowers the Federal
Trade Commission to regulate websites that target children,
does not preempt the plaintiffs’ state-law privacy claim.
Accordingly, we will affirm the District Court’s
dismissal of most of the plaintiffs’ claims, vacate its dismissal
of the claim for intrusion upon seclusion against Viacom, and
remand the case for further proceedings.
I. Background
We begin by summarizing the allegations in the
plaintiffs’ complaints.2
2
The plaintiffs filed a Master Consolidated Class Action
Complaint that included seven claims. (See App. Vol. II at
8
A. Internet Cookie Technology
When a person uses a web browser to access a website,
the browser sends a “GET” request to the server hosting that
site. So, for example, if a person types “www.nick.com” into
the address bar of his or her web browser, the browser
contacts the server where Nick.com is hosted and transmits
data back to the user’s computer.3 In addition to other
content, Nick.com may also display ads from third parties.
These ads typically reside on a different server. To display
the ad, the Nick.com server will direct the user’s browser to
send another “GET” request to the third-party server, which
will then transmit the ad directly to the user’s computer.
From the user’s perspective, all of this appears to happen
simultaneously, and all the visual information on Nick.com
appears to originate from a single source. In reality, the
Nick.com website is an assemblage of content from multiple
59–107.) The District Court dismissed four claims with
prejudice, two claims without prejudice as to both defendants,
and one claim with prejudice as to Google but without
prejudice as to Viacom. The plaintiffs then filed a Second
Consolidated Class Action Complaint. (See id. at 108–62.)
The two complaints are cited throughout as the “First Compl.”
and “Second Compl.” As this is “an appeal from a Rule
12(b)(6) dismissal, we must accept all well-pled allegations in
the complaint as true and draw all reasonable inferences in
favor of the non-moving party.” Brown v. Card Serv. Ctr.,
464 F.3d 450, 452 (3d Cir. 2006).
3
Second Compl. ¶¶ 25–26.
9
servers hosted by different parties.4
An Internet “cookie” is a small text file that a web
server places on a user’s computing device.5 Cookies allow a
website to “remember” information about a user’s browsing
activities (such as whether or not the user is logged-in, or
what specific pages the user has visited). We can distinguish
between first-party cookies, which are injected into a user’s
computer by a website that the user chooses to visit (e.g.,
Nick.com), and third-party cookies, which are placed on a
user’s computer by a server other than the one that a person
intends to visit (e.g., by an ad company like Google).6
Advertising companies use third-party cookies to help
them target advertisements more effectively at customers who
might be interested in buying a particular product. Cookies
are particularly powerful if the same company hosts ads on
more than one website. In those circumstances, advertising
companies are able to follow a user’s browsing habits across
multiple websites that host the company’s ads. Given
Google’s dominance in the Internet advertising market, the
plaintiffs claim that Google is able to use cookies to track
users’ behavior across large swaths of the Internet.7
4
Id. ¶¶ 27–29.
5
Id. ¶ 31.
6
Id. ¶ 33.
7
Id. ¶ 45.
10
B. Factual Allegations
Defendant Viacom owns the children’s television
station Nickelodeon. It also operates Nick.com, a website
geared towards children that offers streaming videos and
interactive games.8 A child registers to use Nick.com by
signing up for an account and choosing a username and
password.9 During the registration process, a child provides
his or her birthdate and gender to Viacom, and Viacom then
assigns the child a code based on that information.10 The
plaintiffs also assert that Viacom’s registration form includes
a message to children’s parents: “HEY GROWN-UPS: We
don’t collect ANY personal information about your kids.
Which means we couldn’t share it even if we wanted to!”11
The plaintiffs allege that Viacom and Google
unlawfully used cookies to track children’s web browsing and
video-watching habits on Viacom’s websites. They claim that
8
Id. ¶¶ 1, 101, 109. The plaintiffs’ first complaint also
raised allegations relating to NickJr.com and NeoPets.com,
but those websites do not appear in the plaintiffs’ second
complaint. See First Compl. ¶¶ 1, 126.
9
Second Compl. ¶¶ 102–03.
10
Viacom apparently refers to these as “rugrat codes,” with
the moniker “rugrat” coming from the long-running
Nickelodeon cartoon of the same name. So, for example, the
“rugrat code” for all six-year-old boys registered to use
Viacom’s websites is “Dil,” the name of one of the Rugrats
characters. Id. ¶¶ 104, 111–12.
11
Id. ¶ 103.
11
the defendants collected information about children in at least
four ways.
First, when a user visits one of Viacom’s websites,
Viacom places its own first-party cookie on that user’s
computer.12 This permits Viacom to track a child’s behavior,
including which games a child plays and which videos a child
watches.
Second, Google contracts with Viacom to place
advertisements on Viacom’s websites. As a result, Google is
able to place third-party cookies on the computers of persons
who visit those websites, including children.13
Third, the plaintiffs claim that, “[u]pon information
and belief, Viacom also provided Google with access to the
profile and other information contained within Viacom’s first-
party cookies.”14
Fourth, the plaintiffs assert that, once Google places a
cookie on a person’s computer, it can track that person across
any website on which Google displays ads.15 Google uses so-
called “Doubleclick.net cookies” to accomplish this task.16 In
addition, Google offers its own collection of online services
12
Id. ¶ 67.
13
Id. ¶ 68.
14
Id. ¶ 70.
15
Id. ¶¶ 79–87.
16
Id. ¶ 78.
12
to Google account-holders and other web users, including
Gmail, Google Maps, and YouTube (which Google owns).17
The plaintiffs claim that Google combines information that it
collects from people using its websites with information it
gleans from displaying ads on others’ websites.18 They also
claim that “Viacom is aware of Google’s ubiquitous presence
on the Internet and its tracking of users.”19
In the aggregate, the plaintiffs claim that Viacom
discloses to Google, and Google collects and tracks, all of the
following information about children who visit Viacom’s
websites:
(1) the child’s username/alias; (2) the child’s
gender; (3) the child’s birthdate; (4) the child’s
IP address; (5) the child’s browser settings; (6)
the child’s unique device identifier; (7) the
child’s operating system; (8) the child’s screen
resolution; (9) the child’s browser version; (10)
the child’s web communications, including but
not limited to detailed URL requests and video
materials requested and obtained from
17
Id. ¶ 80.
18
Id. ¶¶ 64, 83; see also First Compl. ¶ 155 (“Upon
information and belief, in addition to intercepting the
Plaintiffs’ communications with the Viacom children’s
websites, Google used the cookies to track the Plaintiffs’
communications with other websites on which Google places
advertisements and related tracking cookies . . . .”).
19
Second Compl. ¶ 93.
13
Viacom’s children’s websites; and (11) the
DoubleClick persistent cookie identifiers.20
The purpose of all of this information gathering is to
sell targeted advertising based on users’ web browsing. In
fact, the plaintiffs claim that targeting advertisements to
children is more profitable than targeting advertising to adults
“because children are generally unable to distinguish between
content and advertisements.”21 They cite a Wall Street
Journal article stating that “popular children’s websites install
more tracking technologies on personal computers than do the
top websites aimed at adults.”22
The plaintiffs also allege a number of facts about
online tracking more generally. They claim that it is
surprisingly easy for advertising companies to identify web
users’ offline identities based on their online browsing habits.
They cite a Stanford professor, Arvind Narayanan, for the
proposition that “re-identification” of web users based on
seemingly anonymous data is possible based on users’
commercial transactions, web browsing, search histories, and
other factors.23 The plaintiffs also claim that companies can
use “browser fingerprinting” to identify website visitors based
on the configuration of a user’s browser and operating
20
Id. ¶ 76.
21
Id. ¶ 55.
22
Id. ¶ 56 (quoting Steve Stecklow, On the Web, Children
Face Intensive Tracking, Wall St. J., Sept. 17, 2010).
23
Id. ¶¶ 57–58.
14
system.24 Using these techniques, the plaintiffs claim that
Google and Viacom “are able to link online and offline
activity and identify specific users, including the Plaintiffs
and children that form the putative class.”25
Lastly, the plaintiffs allege a number of facts in order
to demonstrate that the defendants’ behavior violated
contemporary social norms. To that end, they claim that
Google is a member of an organization called the Interactive
Advertising Bureau that promulgates a Code of Conduct for
its members. That Code is said to prohibit members from
collecting “personal information” from children “they have
actual knowledge are under the age of 13.”26 The plaintiffs
also cite a survey of more than 2,000 adults conducted by the
Center for Digital Democracy. According to the survey,
80 percent of respondents oppose the tracking of children
even where an advertiser does not “know a child’s name and
address,” and 91 percent believe advertisers should receive a
parent’s permission before placing tracking software on a
minor child’s computing device.27
C. Procedural History in the District Court
In June of 2013, the Judicial Panel on Multidistrict
Litigation transferred six privacy-related suits against Viacom
24
Id. ¶¶ 61–62.
25
Id. ¶ 64.
26
Id. ¶ 137(b).
27
Id. ¶ 164(c), (d).
15
and Google to the District of New Jersey for consolidation.28
The plaintiffs in these cases seek to represent two classes.
The first is a class of “[a]ll children under the age of 13 in the
United States who visited the website Nick.com and had
Internet cookies that tracked their communications placed on
their computing devices by Viacom and Google.”29 The
second is a class of “[a]ll children under the age of 13 in the
United States who were registered users of Nick.com and who
engaged with one or more video materials on such site, and
who had their video viewing histories knowingly disclosed by
Viacom to Google.”30 The proposed classes are not bounded
by any time period, although the plaintiffs do note that
Viacom “revamped its Nick.com website” in August of 2014
so that it “no longer discloses the particular video viewing or
game histories of individual users of Nick.com to Google.”31
Shortly after transfer to the District of New Jersey, the
plaintiffs filed their first consolidated complaint. It raised six
28
In re Nickelodeon Consumer Privacy Litig., 949 F. Supp.
2d 1377 (J.P.M.L. 2013).
29
Second Compl. ¶ 115.
30
Id.
31
Id. ¶ 101.
16
claims, including violations of (i) the Wiretap Act,32 (ii) the
Stored Communications Act,33 (iii) the California Invasion of
Privacy Act,34 (iv) the Video Privacy Protection Act,35 (v) the
New Jersey Computer Related Offenses Act,36 and (vi) a
claim under New Jersey common law for intrusion upon
seclusion.
The District Court granted the defendants’ motion to
dismiss all of the plaintiffs’ claims, three of them with
32
18 U.S.C. § 2510, et seq. The Wiretap Act, “formally
known as the 1968 Omnibus Crime Control and Safe Streets
Act,” was technically superseded by the Electronic
Communications Privacy Act in 1986. Fraser v. Nationwide
Mut. Ins. Co., 352 F.3d 107, 113 & n.7 (3d Cir. 2003), as
amended (Jan. 20, 2004). We refer to the Wiretap Act
throughout, as we did in Google.
33
18 U.S.C. § 2701, et seq.
34
Cal. Penal Code § 630, et seq.
35
18 U.S.C. § 2710.
36
N.J. Stat. Ann. § 2A:38A–3. The plaintiffs’ first
complaint also included a count alleging unjust enrichment.
(See First Compl. ¶¶ 198–201.) The District Court dismissed
this claim with prejudice. (See App. Vol. I at 43–44.) The
plaintiffs eventually explained that they sought to use unjust
enrichment “not as an independent action in tort, but as a
measure of damages under the [New Jersey Computer Related
Offenses Act] in a quasi-contractual sense.” (Pls. Br. at 47.)
17
prejudice.37 The District Court nonetheless permitted the
plaintiffs to file an amended complaint revising their claims
under the Video Privacy Protection Act, the New Jersey
Computer Related Offenses Act, and for intrusion upon
seclusion. The plaintiffs did so, the defendants again moved
to dismiss, and the District Court dismissed the case in its
entirety.38 The plaintiffs now appeal.39
Our Court’s review of a decision dismissing a
37
In re Nickelodeon Consumer Privacy Litig., No. 12-cv-
7829 (SRC), 2014 WL 3012873, at *20 (D.N.J. July 2, 2014)
(“Nickelodeon I”). The District Court dismissed the unjust
enrichment claim with prejudice, but, as explained earlier,
that was never a standalone cause of action. It also dismissed
the plaintiffs’ Video Privacy Protection Act claims against
Google with prejudice, but allowed the plaintiffs to amend
their Video Privacy claim against Viacom. Id.
38
In re Nickelodeon Consumer Privacy Litig., No. 12-cv-
7829 (SRC), 2015 WL 248334, at *7 (D.N.J. Jan. 20, 2015)
(“Nickelodeon II”).
39
This is a diversity suit brought by plaintiffs under the
Class Action Fairness Act and various provisions of federal
law. See 28 U.S.C. §§ 1332(d)(2), 1331. The District Court
exercised supplemental jurisdiction over plaintiffs’ state-law
claims under 28 U.S.C. § 1367. The District Court entered an
order dismissing the case on January 20, 2015, and the
plaintiffs filed a timely notice of appeal. (App. Vol. I at 1,
58.) This Court has appellate jurisdiction over the final order
of the District Court under 28 U.S.C. § 1291.
18
complaint is plenary.40
II. Arguments and Claims Foreclosed by Our
Decision in Google
Google came down in November of 2015, several
months after briefing in this case was complete but before
oral argument. We therefore asked the parties to submit their
views about Google’s effect on the present litigation. As will
become clear, we conclude that Google is fatal to several of
the plaintiffs’ claims.
The Google plaintiffs consisted of a class of persons
who used two web browsers: Apple’s Safari and Microsoft’s
Internet Explorer.41 These browsers came with cookie-
blocking options designed to protect users’ privacy while they
browsed the Internet. In February of 2012, a Stanford
graduate student revealed that Google and several other
advertising companies had devised ways to evade these
cookie-blocking options, even while touting publicly that they
respected their users’ choices about whether to take advantage
of cookie-blocking technology.42
The Google plaintiffs then filed a federal lawsuit
alleging violations of the Wiretap Act, the Stored
Communications Act, and the Computer Fraud and Abuse
40
Finkelman v. Nat’l Football League, 810 F.3d 187, 192
(3d Cir. 2016).
41
Google, 806 F.3d at 133.
42
Id. at 132.
19
Act.43 They also brought claims for violation of the
California Invasion of Privacy Act and for intrusion upon
seclusion and invasion of privacy under California law.44
The district court dismissed those claims in their
entirety.45 We affirmed the dismissals of all claims except
those for invasion of privacy and intrusion upon seclusion.
With respect to those claims, we determined that “[a]
reasonable factfinder could conclude that the means by which
defendants allegedly accomplished their tracking, i.e., by way
of a deceitful override of the plaintiffs’ cookie blockers,
marks the serious invasion of privacy contemplated by
California law.”46
With this background in mind, we turn to Google’s
effect on the present litigation.
A. Article III Standing
“To establish Article III standing, a plaintiff must
demonstrate ‘(1) an injury-in-fact, (2) a sufficient causal
43
Id. at 133.
44
The Google plaintiffs brought other statutory claims not
relevant to this case, including claims for alleged violations of
California’s Unfair Competition Law, its Comprehensive
Computer Data Access and Fraud Act, and its Consumers
Legal Remedies Act. See id.
45
See In re Google Inc. Cookie Placement Consumer
Privacy Litig., 988 F. Supp. 2d 434 (D. Del. 2013).
46
Google, 806 F.3d at 153.
20
connection between the injury and the conduct complained of,
and (3) a likelihood that the injury will be redressed by a
favorable decision.’”47 To allege an injury-in-fact, “a plaintiff
must claim ‘the invasion of a concrete and particularized
legally protected interest’ resulting in harm ‘that is actual or
imminent, not conjectural or hypothetical.’”48 A harm is
“particularized” if it “affect[s] the plaintiff in a personal and
individual way.”49 It is “concrete” if it is “‘de facto’; that is,
it must actually exist” rather than being only “abstract.”50
The defendants assert that Article III standing is
lacking in this case because the disclosure of information
about the plaintiffs’ online activities does not qualify as an
injury-in-fact. Google rejected a similar argument, stating
that, when it comes to laws that protect privacy, a focus on
“economic loss is misplaced.”51 Instead, in some cases an
injury-in-fact “may exist solely by virtue of statutes creating
legal rights, the invasion of which creates standing.”52
47
Finkelman, 810 F.3d at 193 (quoting Neale v. Volvo Cars
of N. Am., LLC, 794 F.3d 353, 358–59 (3d Cir. 2015) (internal
quotation marks omitted and punctuation modified)).
48
Id. (quoting Blunt v. Lower Merion Sch. Dist., 767 F.3d
247, 278 (3d Cir. 2014)).
49
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1
(1992).
50
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016).
51
Google, 806 F.3d at 134.
52
Id. (quoting Havens Realty Corp. v. Coleman, 455 U.S.
363, 373 (1982)).
21
Applying this principle, other courts have found standing in
cases arising from allegedly unlawful disclosures similar to
those at issue here.53
The Supreme Court’s recent decision in Spokeo, Inc. v.
Robins54 does not alter our prior analysis in Google. The
plaintiff there alleged that Spokeo, an online background
check company, reported inaccurate information about him to
its customers. The plaintiff then sued Spokeo under the Fair
Credit Reporting Act. The Ninth Circuit concluded that the
plaintiff’s “personal interests in the handling of his credit
information,” coupled with the purported “violations of
statutory rights created by the [Act],” were sufficient to
satisfy the injury-in-fact requirement of Article III standing.55
The Supreme Court granted certiorari in Spokeo to address the
question of “[w]hether Congress may confer Article III
standing upon a plaintiff who suffers no concrete harm, and
who therefore could not otherwise invoke the jurisdiction of a
federal court, by authorizing a private right of action based on
53
See, e.g., Sterk v. Redbox Automated Retail, LLC, 770
F.3d 618, 623 (7th Cir. 2014) (“By alleging that Redbox
disclosed their personal information in violation of the [Video
Privacy Protection Act], [plaintiffs] have met their burden of
demonstrating that they suffered an injury in fact that success
in this suit would redress.”).
54
136 S. Ct. 1540.
55
See Robins v. Spokeo, Inc., 742 F.3d 409, 413
(9th Cir. 2014).
22
a bare violation of a federal statute.”56 Rather than answer
that question directly, the Supreme Court vacated the
judgment of the Ninth Circuit and remanded the case for
further proceedings.
In doing so, the Supreme Court explained that the
Ninth Circuit erred in its standing analysis by focusing only
on whether the plaintiff’s purported injury was
“particularized” without also assessing whether it was
sufficiently “concrete.”57 In reaching this conclusion, the
Court noted that even certain kinds of “intangible” harms can
be “concrete” for purposes of Article III. When evaluating
whether such a harm qualifies as an injury-in-fact, judges
should consider whether the purported injury “has a close
relationship to a harm that has traditionally been regarded as
providing a basis for a lawsuit in English or American
courts.”58 Congress’s judgment on such matters is “also
instructive and important,” meaning that Congress may
“elevat[e] to the status of legally cognizable injuries concrete,
de facto injuries that were previously inadequate in law.”59
56
Supreme Court, No. 13-1339, Question Presented,
http://www.supremecourt.gov/qp/13-01339qp.pdf (last visited
June 14, 2016).
57
Spokeo, 136 S. Ct. at 1550 (“Because the Ninth Circuit
failed to fully appreciate the distinction between concreteness
and particularization, its standing analysis was incomplete.”).
58
Id. at 1549.
59
Id. (alteration in original) (quoting Lujan, 504 U.S.
at 578).
23
Intangible harms that may give rise to standing also
include harms that “may be difficult to prove or measure,”
such as unlawful denial of access to information subject to
disclosure.60 What a plaintiff cannot do, according to the
Court, is treat a “bare procedural violation . . . [that] may
result in no harm” as an Article III injury-in-fact.61 The Court
provided two examples, including a defendant’s failure to
comply with a statutory notice requirement and, in the context
of the Fair Credit Reporting Act, the dissemination of
inaccurate information about a plaintiff, such as an incorrect
zip code, that does not “cause harm or present any material
risk of harm.”62
None of these pronouncements calls into question
whether the plaintiffs in this case have Article III standing.
The purported injury here is clearly particularized, as each
plaintiff complains about the disclosure of information
relating to his or her online behavior. While perhaps
“intangible,” the harm is also concrete in the sense that it
involves a clear de facto injury, i.e., the unlawful disclosure of
legally protected information. Insofar as Spokeo directs us to
consider whether an alleged injury-in-fact “has traditionally
been regarded as providing a basis for a lawsuit,”63 Google
noted that Congress has long provided plaintiffs with the right
60
Id. at 1549–50 (citing Fed. Election Comm’n v. Akins, 524
U.S. 11 (1998), and Pub. Citizen v. Dep’t of Justice, 491 U.S.
440 (1989)).
61
Id. at 1550.
62
Id.
63
Id. at 1549.
24
to seek redress for unauthorized disclosures of information
that, in Congress’s judgment, ought to remain private.64
Accordingly, we conclude that the plaintiffs have
alleged facts which, if true, are sufficient to establish
Article III standing.
B. The Federal Wiretap Act
The plaintiffs bring a claim against both Viacom and
Google under the federal Wiretap Act. A plaintiff pleads a
prima facie case under the Wiretap Act by showing that the
defendant “(1) intentionally (2) intercepted, endeavored to
intercept or procured another person to intercept or endeavor
to intercept (3) the contents of (4) an electronic
communication, (5) using a device.”65
The District Court rejected the plaintiffs’ wiretapping
claim for two reasons. First, it concluded that Google’s
conduct was not unlawful in view of how Google allegedly
communicated with the plaintiffs’ computers. The Wiretap
Act does not make it unlawful “for a person to
‘intercept . . . electronic communication’ if the person ‘is [1] a
party to the communication or [2] where one of the parties to
the communication has given prior consent to such
64
See Google, 806 F.3d at 134 & n.19 (citing Doe v. Chao,
540 U.S. 614, 641 (2004) (Ginsburg, J., dissenting)
(discussing standing under the Privacy Act of 1974)).
65
Id. at 135 (quoting In re Pharmatrak, Inc. Privacy Litig.,
329 F.3d 9, 18 (1st Cir. 2003)).
25
interception . . . .’”66 Here, Google was either a party to all
communications with the plaintiffs’ computers or was
permitted to communicate with the plaintiffs’ computers by
Viacom, who was itself a party to all such communications.
Accordingly, the plaintiffs failed to state a legally sufficient
wiretapping claim.
Second, the District Court concluded that the
information Google allegedly intercepted was not of the kind
protected by the statute. The Wiretap Act prohibits
“intercept[ion]” of “any wire, oral, or electronic
communication,” and defines “intercept[ion]” as “the aural or
other acquisition of the contents of any wire, electronic, or
oral communication through the use of any electronic,
mechanical, or other device.”67 The plaintiffs alleged that,
insofar as Viacom permitted Google to access URLs that
revealed which videos a child watched, such as
“http://www.nick.com/shows/penguins-of-madagascar,”68
Google intercepted the “contents” of the plaintiffs’
communications. The District Court disagreed. It concluded
that a URL is more akin to a telephone number (whose
interception cannot support a Wiretap Act claim) than a
substantive conversation (whose interception can give rise to
66
Nickelodeon I, 2014 WL 3012873, at *13 (quoting
18 U.S.C. § 2511(d)(2)).
67
18 U.S.C. §§ 2511(1)(a), 2510(4).
68
First Compl. ¶¶ 78, 140.
26
such a claim).69 The District Court dismissed the plaintiffs’
Wiretap Act claim on this ground as well.70
Google vindicated the District Court’s reasoning as to
one-party consent, but not with respect to the definition of
“contents.” We there concluded that companies that place
cookies on a computing device are, at least on facts analogous
to those alleged here, “parties to any communications that
they acquired,” meaning that such companies are not liable
under the Wiretap Act.71 We also concluded that “some
queried URLs qualify as content,”72 reasoning that a URL
may convey “substantive information” about web browsing
activity instead of mere “dialing, routing, addressing, or
69
Compare Smith v. Maryland, 442 U.S. 735, 741 (1979)
(explaining that pen registers “disclose only the telephone
numbers that have been dialed—a means of establishing
communication,” and not “any communication between the
caller and the recipient of the call” (quoting United States v.
N.Y. Tel. Co., 434 U.S. 159, 167 (1977))), with Katz v. United
States, 389 U.S. 347, 357–58 (1967) (holding that warrantless
wiretapping of a telephone call violates the Fourth
Amendment).
70
Nickelodeon I, 2014 WL 3012873, at *14–15.
71
Google, 806 F.3d at 145.
72
Id. at 139 (“[T]he domain name portion of the URL—
everything before the ‘.com’—instructs a centralized web
server to direct the user to a particular website, but post-
domain name portions of the URL are designed to
communicate to the visited website which webpage content to
send the user.”).
27
signaling information.”73 The first holding is fatal to the
plaintiffs’ claim.
The plaintiffs try to resist this conclusion. They
contend that the one-party consent language in the Wiretap
Act does not apply here because the plaintiffs were minors
who were incapable of consenting at all. We agree with the
District Court that the plaintiffs “have cited no authority for
the proposition that the Wiretap Act’s one-party consent
regime depends on the age of the non-consenting party.”74
Given the vast potential for unexpected liability whenever a
minor happened to browse an Internet site that deployed
cookies, we decline to adopt such a reading of the Act here.75
The plaintiffs also argue that, even if Google and
Viacom were parties to any intercepted communications, they
nonetheless acted unlawfully because the Wiretap Act
imposes liability whenever someone intercepts information
“for the purpose of committing . . . [a] tortious act.”76 Here,
the plaintiffs allege that the defendants’ use of cookies
amounted to the common law tort of intrusion upon seclusion.
We rejected a similar argument in Google, reasoning that the
“tortious act” provision of the wiretapping statute only applies
73
Id. at 137.
74
Nickelodeon I, 2014 WL 3012873, at *14.
75
In addition, adopting the plaintiffs’ view could mean that
the alleged inability of a minor to consent would vitiate
another party’s consent, which we conclude would be
inconsistent with the Wiretap Act’s statutory language.
76
18 U.S.C. § 2511(2)(d).
28
when “the offender intercepted the communication for the
purpose of a tortious or criminal act that is independent of the
intentional act of recording.”77 Consistent with our reasoning
in Google, we will affirm the District Court’s dismissal of the
plaintiffs’ wiretapping claim.78
C. The California Invasion of Privacy Act
The California Invasion of Privacy Act “broadly
prohibits the interception of wire communications and
disclosure of the contents of such intercepted
communications.”79 Google affirmed the dismissal of a claim
77
Google, 806 F.3d at 145 (quoting Caro v. Weintraub, 618
F.3d 94, 100 (2d Cir. 2010)).
78
The Wiretap Act also makes it unlawful for a person to
“intentionally . . . procure[] any other person to intercept or
endeavor to intercept, any wire, oral, or electronic
communications.” 18 U.S.C. § 2511(1)(a). The plaintiffs
broadly assert that “Viacom procured Google to intercept the
content of the Plaintiffs’ communications with other websites,
and, upon information and belief, profited from Google’s
unauthorized tracking on other sites . . . .” (Pls. Br. at 8.) The
plaintiffs’ allegations of procurement in this case are entirely
conclusory and therefore fail to comport with “the Supreme
Court’s teaching that all aspects of a complaint must rest on
‘well-pleaded factual allegations’ and not ‘mere conclusory
statements.’” Finkelman, 810 F.3d at 194 (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009)).
79
Google, 806 F.3d at 152 (quoting Tavernetti v. Superior
Court, 583 P.2d 737, 739 (Cal. 1978)).
29
under the California Act on the view that, like the federal
wiretapping statute, the California Act does not apply when
the alleged interceptor was a party to the communications.80
For the same reason, we will affirm the District Court’s
dismissal of the plaintiffs’ similar claim here.81
D. The Federal Stored Communications Act
Passed in 1986, the Stored Communications Act aims
to prevent “potential intrusions on individual privacy arising
from illicit access to ‘stored communications in remote
computing operations and large data banks that stored e-
mails.’”82 A person violates the Stored Communications Act
80
Id. (stating that the California Invasion of Privacy Act “is
aimed only at ‘eavesdropping, or the secret monitoring of
conversations by third parties’” (quoting Ribas v. Clark, 696
P.2d 637, 640 (Cal. 1985) (in bank))).
81
In their submission regarding Google’s application to the
present case, the plaintiffs argue that the defendants also may
be liable under § 632 of the California Invasion of Privacy
Act, which prohibits eavesdropping on or recording
confidential communications. The plaintiffs did not discuss
§ 632 in their complaints, nor did they brief its application
before us. Accordingly, any arguments based on § 632 are
now waived. See Harris v. City of Philadelphia, 35 F.3d 840,
845 (3d Cir. 1994) (“This court has consistently held that it
will not consider issues that are raised for the first time on
appeal.”).
82
Google, 806 F.3d at 145 (quoting Garcia v. City of
Laredo, Tex., 702 F.3d 788, 791 (5th Cir. 2012)).
30
whenever he or she “(1) intentionally accesses without
authorization a facility through which an electronic
communication service is provided; or (2) intentionally
exceeds an authorization to access that facility; and thereby
obtains, alters, or prevents authorized access to a wire or
electronic communication while it is in electronic storage in
such system.”83
In Google, we affirmed dismissal of a claim under the
Stored Communications Act because, in our view, personal
computing devices were not protected “facilities” under the
statute.84 For the same reason, we will affirm dismissal of the
plaintiffs’ Stored Communications Act claim here.85
83
Id. at 145–46 (quoting 18 U.S.C. § 2701(a)).
84
Id. at 148.
85
The plaintiffs argue that, even if Google stated that “a
personal computing device” is not a protected facility under
the Stored Communications Act, it did not go so far as to hold
that a personal web browser is not a protected facility. See
Ltr. from J. Frickleton to Ct. at 4 (Nov. 24, 2015). This
argument parses the language of Google too finely. Google
explained that “[t]he origin of the Stored Communications
Act confirms that Congress crafted the statute to specifically
protect information held by centralized communication
providers.” 806 F.3d at 147. Since neither a personal
computing device nor a personal web browser is akin to a
“centralized communication provider,” the plaintiffs’
proposed distinction does not salvage their claim. See ACTV,
Inc. v. Walt Disney Co., 204 F. Supp. 2d 650, 656 (S.D.N.Y.
2002) (defining “web browser” as “a software application that
31
E. The New Jersey Computer Related
Offenses Act
The New Jersey Computer Related Offenses Act
makes it unlawful to alter, damage, access, or obtain data
from a computer without authorization.86 It also permits “[a]
person or enterprise damaged in business or property” to sue
for compensatory and punitive damages, as well as fees and
costs.87 The plaintiffs allege that Viacom and Google
violated the New Jersey Act by using Internet cookies to
“access[] Plaintiffs’ and Class Members’ computers in order
to illegally harvest Plaintiffs’ and Class Members’ personal
information” without their consent.88
The District Court dismissed this claim because, in its
view, the plaintiffs failed to allege that they had been
“damaged in business or property,” as the plain text of the
New Jersey Act requires. The plaintiffs believe that the
District Court erred by failing to credit their theory of
damage—namely, that the defendants’ appropriation of their
personal information, without compensation, constituted
can be used to locate and display web pages in human-
readable form”); New York v. Microsoft Corp., 224 F. Supp.
2d 76, 245–46 (D.D.C. 2002) (“[A] web browser provides the
ability for the end user to select, retrieve, and perceive
resources on the Web.”).
86
N.J. Stat. Ann. 2A:38A–3.
87
Id.
88
Second Compl. ¶ 153.
32
unjust enrichment. The plaintiffs concede that “unjust
enrichment has never been used as a measure of damages”
under the New Jersey Act, but nonetheless encourage us to
embrace this novel theory now.89 We decline to do so.
In the first place, we have previously said that a claim
under the New Jersey Act “require[s] proof of some activity
vis-à-vis the information other than simply gaining access to
it,”90 and the plaintiffs allege the defendants did no more than
“gain access” to their information here. In addition, crediting
this novel theory of injury would be inconsistent with our
treatment of similar allegations in Google. The plaintiffs
there brought claims for violation of the federal Computer
Fraud and Abuse Act,91 which, like the New Jersey Act,
requires a private plaintiff to show proof of “damage or
loss.”92 The Google plaintiffs failed to satisfy this
requirement because they “allege[d] no facts suggesting that
they ever participated or intended to participate in the market
[for sale of their information], or that the defendants
prevented them from capturing the full value of their internet
usage information for themselves.”93 Nor did they ever assert
that “they sought to monetize information about their internet
usage, nor that they ever stored their information with a future
89
Pls. Reply Br. at 25.
90
P.C. Yonkers, Inc. v. Celebrations the Party and Seasonal
Superstore, LLC, 428 F.3d 504, 509 (3d Cir. 2005).
91
18 U.S.C. § 1030.
92
Id. § 1030(g).
93
Google, 806 F.3d at 149.
33
sale in mind.”94
The plaintiffs’ claim here fails for the same reason. To
be sure, the New Jersey courts are free to interpret the
requirement to show “damage[] in business or property”
under the New Jersey Act differently than federal courts
interpret the analogous requirement in the Computer Fraud
and Abuse Act. But the plaintiffs have pointed us to no
authority indicating that federal and state courts understand
the two laws differently. In fact, the opposite appears to be
true: courts seem to have interpreted the New Jersey Act in
harmony with its federal counterpart.95
Because we conclude that the plaintiffs have failed to
allege the kind of injury that the New Jersey Act requires, we
will affirm the District Court’s dismissal of their claim.
III. Claims Raising Issues Beyond Those We
Addressed in Google
While our spadework in Google goes a long way
towards resolving this case, it does not do so entirely. The
plaintiffs bring two claims—one for violation of the Video
Privacy Protection Act, and one for intrusion upon seclusion
under New Jersey law—that require us to break new ground.
94
Id.
95
See, e.g., Mu Sigma, Inc. v. Affine, Inc., No. 12-cv-1323
(FLW), 2013 WL 3772724, at *9–10 (D.N.J. July 17, 2013)
(dismissing claims under the state and federal computer
statutes for identical reasons).
34
A. The Video Privacy Protection Act
Congress passed the Video Privacy Protection Act in
1988 after the Washington City Paper published Supreme
Court nominee Robert Bork’s video rental history.96 “The
paper had obtained (without Judge Bork’s knowledge or
consent) a list of the 146 films that the Bork family had rented
from a Washington, D.C.-area video store.”97 According to
the Senate Report accompanying the law’s passage, Congress
passed the Act “[t]o preserve personal privacy with respect to
the rental, purchase or delivery of video tapes or similar audio
visual materials.”98
The Act creates a private cause of action for plaintiffs
to sue persons who disclose information about their video-
watching habits. Unfortunately, as the Seventh Circuit has
noted, the Act “is not well drafted,”99 requiring us to begin by
summarizing a bit of legislative jargon. The Act defines
several key terms:
96
See S. Rep. No. 100-599, at 5 (1988), reprinted in 1988
U.S.C.C.A.N. 4342-1 (“Senate Report”), also available at
1988 WL 243503.
97
Mollett v. Netflix, Inc., 795 F.3d 1062, 1065
(9th Cir. 2015).
98
Senate Report at 1.
99
Sterk v. Redbox Automated Retail, LLC, 672 F.3d 535,
538 (7th Cir. 2012).
35
 Consumer: “any renter, purchaser, or
subscriber of goods or services from a video
tape service provider.”100
 Video tape service provider: “any person,
engaged in the business, in or affecting
interstate or foreign commerce, of rental,
sale, or delivery of prerecorded video
cassette tapes or similar audio visual
materials.”101
 Personally identifiable information:
“includes information which identifies a
person as having requested or obtained
specific video materials or services from a
video tape service provider.”102
To state a claim under the Act, a plaintiff must allege
that “[a] video tape service provider . . . knowingly
disclose[d], to any person, personally identifiable information
concerning any consumer of such provider.”103 The Act
(i) sets a minimum penalty of $2,500 per violation, (ii)
permits a plaintiff to recover punitive damages, reasonable
attorneys’ fees, and litigation costs, and (iii) empowers district
100
18 U.S.C. § 2710(a)(1).
101
Id. § 2710(a)(4).
102
Id. § 2710(a)(3).
103
Id. § 2710(b)(1).
36
courts to provide appropriate equitable relief.104
The plaintiffs allege that Viacom disclosed to Google
URL information that effectively revealed what videos they
watched on Nickelodeon’s websites, and static digital
identifiers (such as IP addresses, browser fingerprints, and
unique device identifiers) that enabled Google to link the
watching of those videos to their real-world identities.105
104
Id. § 2710(c)(2)(A)–(D).
105
Second Compl. ¶¶ 75–76, 143–46. As a technical matter,
IP addresses themselves “may be either ‘static’ (remain
constant) or ‘dynamic’ (change periodically).” Klimas v.
Comcast Cable Commc’ns, Inc., 465 F.3d 271, 273 (6th Cir.
2006). Quite apart from this distinction, we use the phrase
“static digital identifiers” to refer to the various types of
information allegedly disclosed by the defendants, including
IP addresses, browser fingerprints, unique device ID numbers,
and cookie identifiers. By using the word “static,” we mean
to convey that these identifiers persisted across time in a
manner that allegedly enabled the defendants to identify the
plaintiffs and to catalogue their online browsing habits.
37
They bring claims under the Act against both defendants.106
1. Whether Google is an Appropriate
Defendant under the Act
The first question we confront is whom, exactly, the
Act permits the plaintiffs to sue. The plaintiffs contend that
the Act allows them to sue both a video tape service provider
who discloses personally identifiable information and a
person who receives that information. To put it another way,
the parties seem to agree that the video clerk who leaked
Judge Bork’s rental history clearly would have been liable
under the Act had it been in force at the time—but what about
the reporter at the Washington City Paper to whom he leaked
the information? The plaintiffs say he would have been liable
as well. Google (standing-in for the reporter in our fact
pattern) disagrees.
The text of the statute is not clear on this point.
Subsection (b) states that a “video tape service provider who
knowingly discloses, to any person, personally identifiable
106
The defendants do not argue that the plaintiffs were not
“consumers” of Viacom’s video services—i.e., persons who
“rent[], purchase[], or subscribe[]” to goods or services of a
service provider. 18 U.S.C. § 2710(a)(1). We note that the
Eleventh Circuit has held that persons who download a free
application to watch videos on their smartphones are not
“subscribers” under the Act. See Ellis v. Cartoon Network,
Inc., 803 F.3d 1251, 1257 (11th Cir. 2015). In the absence of
any argument to the contrary, we will assume that the
plaintiffs were consumers of Viacom’s video services.
38
information concerning any consumer of such provider shall
be liable to the aggrieved person for the relief provided in
subsection (c).”107 Subsection (c), in turn, creates a private
cause of action. It states that “[a]ny person aggrieved by any
act of a person in violation of this section may bring a civil
action in a United States district court.”108
But what constitutes a “violation of this section”?
Google claims that the Act is violated only when a video tape
service provider discloses personally identifiable information,
as proscribed in subsection (b). The plaintiffs, by contrast,
insist that they are just as “aggrieved” when a third party
receives personally identifiable information as when a video
tape service provider discloses it. In support of this argument,
the plaintiffs rely exclusively on a somewhat dated case from
a district court in our Circuit, Dirkes v. Borough of
Runnemede.109 We find the plaintiffs’ reliance on Dirkes
unpersuasive.
107
18 U.S.C. § 2710(b)(1). Actually, this provision of the
Act refers to “the relief provided in subsection (d),” but that is
clearly a scrivener’s error. As Judge Posner explained in
Sterk, “the only ‘relief’ provided [in subsection (d)] is
exclusion of the personally identifiable information from
evidence,” and “it is very unlikely that a video tape service
provider would ever be submitting, as evidence in a legal
proceeding, personally identifiable information that the
provider had disclosed.” 672 F.3d at 537.
108
18 U.S.C. § 2710(c)(1).
109
936 F. Supp. 235 (D.N.J. 1996).
39
Dirkes was a former police officer who was suspected
of stealing pornographic videos from a citizen’s apartment.
The allegations led local prosecutors to indict Dirkes for
committing misconduct and led the local police department to
open disciplinary proceedings. Even though Dirkes was
eventually acquitted of the misconduct charge, the Borough’s
inquiry continued. A Borough investigator learned from a
video store clerk that Dirkes had rented several pornographic
movies, and information about Dirkes’ video rental history
was included in an internal affairs memorandum. That
memorandum “was distributed to the Borough’s special
counsel, who in turn distributed it in connection with Plaintiff
Dirkes’ disciplinary hearing and in a proceeding before the
Superior Court of New Jersey, Camden County.”110
In response to the dissemination of information about
his video rental history, Dirkes and his wife sued the
investigator, the police department, and the Borough for
violating the Video Privacy Protection Act.111 The district
court rejected the defendants’ argument that, as non-
disclosing parties, they could not be liable under the Act.
Instead, it reasoned that Congress’s broad remedial purposes
in passing the statute would best be served by allowing
110
Id. at 236.
111
Id. Another section of the Act, 18 U.S.C.
§ 2710(b)(2)(C), permits a video tape service provider to
disclose information “to a law enforcement agency pursuant
to a warrant . . . , a grand jury subpoena, or a court order.”
The video clerk in Dirkes simply provided the information to
the investigating officer when asked. See Dirkes, 936
F. Supp. at 236.
40
plaintiffs to sue “those individuals who have come to possess
(and who could disseminate) the private information.”112
No other court has interpreted the Act this way. As the
Sixth Circuit explained in Daniel v. Cantrell,113 the better
view is that subsection (b) makes certain conduct—the
disclosure of personally identifiable information by a video
tape service provider—unlawful, and subsection (c) creates a
cause of action against persons who engage in such
conduct.114 Indeed, “if any person could be liable under the
Act, there would be no need for the Act to define a [video
tape service provider] in the first place.”115 Rejecting Dirkes’
focus on the Act’s remedial purposes, Cantrell observed that
“[j]ust because Congress’ goal was to prevent the disclosure
of private information, does not mean that Congress intended
the implementation of every conceivable method of
112
Id. at 240. Alternatively, the district court concluded that
the defendants had potentially violated subsection (d) of the
Act, which bars the introduction of illegally disclosed
information in “any trial, hearing . . . or other proceeding in or
before any court . . . department . . . or other authority of the
United States, a State, or a political subdivision of a State.”
Id. at 240 n.8. The present case does not require us to opine
on the correctness of this interpretation.
113
375 F.3d 377 (6th Cir. 2004).
114
Id. at 382–84 (stating that Dirkes concluded that any
person could be liable for unlawful disclosures “only by
misreading the Act”).
115
Id. (emphasis in original).
41
preventing disclosures.”116 The Seventh Circuit adopted the
same reading of the Act in Sterk v. Redbox Automated Retail,
LLC,117 concluding that “the more plausible interpretation is
that [subsection (c)] is limited to enforcing the prohibition of
disclosure.”118
We agree with our colleagues in the Sixth and Seventh
Circuits. Because we conclude that only video tape service
providers that disclose personally identifiable information can
be liable under subsection (c) of the Act, and because Google
is not alleged to have disclosed any such information here, we
will affirm the District Court’s dismissal of the claim against
Google.119
2. Whether Viacom Disclosed
“Personally Identifiable Information”
Viacom also argues that it never disclosed “personally
identifiable information” about children who viewed videos
on its websites. As we shall see, what counts as personally
116
Id. at 384.
117
672 F.3d 535.
118
Id. at 538.
119
The plaintiffs argued before the District Court that
Google was a video tape service provider, but did not raise the
same argument on appeal. We therefore need not address that
argument here. See United States v. Hoffecker, 530 F.3d 137,
162 (3d Cir. 2008) (describing “the requirement that an
appellant [must] raise an issue in his opening brief or else
waive the issue on appeal”).
42
identifiable information under the Act is not entirely clear.
The plaintiffs claim that Viacom disclosed to Google at
least eleven pieces of information about children who
browsed its websites.120 Three, in particular, are central to
their claim under the Act. The first is a user’s IP address, “a
number assigned to each device that is connected to the
Internet” that permits computer-specific online tracking.121
The second is a user’s browser and operating system settings,
which comprise a so-called “browser fingerprint.”122 The
plaintiffs claim that these profiles are so detailed that the odds
of two people having the same browser fingerprint are 1 in
286,777.123 The third is a computing device’s “unique device
identifier.”124
120
Second Compl. ¶ 143.
121
See United States v. Vosburgh, 602 F.3d 512, 517 n.3 (3d
Cir. 2010) (“Although most devices do not have their own,
permanent (‘static’) addresses, in general an IP address for a
device connected to the Internet is unique in the sense that no
two devices have the same IP address at the same time.”).
Vosburgh affirmed a defendant’s conviction for possession of
child pornography after FBI agents recorded the defendant’s
IP address and then subpoenaed the defendant’s Internet
service provider to learn his identity.
122
Second Compl. ¶ 61.
123
Id. ¶ 62.
124
Nowhere in their complaints or in their briefing do the
plaintiffs explain what a “unique device identifier” actually is,
although other cases give us some indication. For example,
43
What these pieces of information have in common is
that they allegedly permit Google to track the same computer
across time. So, for example, if someone with a Google
account were to run a Google search from his or her
computer, and then that person’s child were to visit Nick.com
and watch a video on that same computer, the plaintiffs claim
that Google could “match” the data (based on IP address,
browser fingerprint, or unique device identifier) to determine
that the same computer was involved in both activities. In the
plaintiffs’ view, this means that Viacom, by permitting
Google to use cookies on its website, effectively disclosed
“information which identifies [a particular child] as having
requested or obtained specific video materials or services
from a video tape service provider,”125 thereby violating the
Act. The plaintiffs also claim that Viacom acted
“knowingly,” as the Act requires, because Viacom permitted
Google to host ads on its websites despite being “aware of
Google’s ubiquitous presence on the Internet and its tracking
of users.”126
one of the types of information at issue in Ellis v. Cartoon
Network, Inc., another case brought under the Video Privacy
Protection Act, was the device ID on Android phones. The
Ellis Court described that ID as “a 64–bit number (hex string)
that is randomly generated when a user initially sets up his
device and should remain constant for the lifetime of the
user’s device.” 803 F.3d at 1254. Presumably the plaintiffs
are referring to something similar.
125
18 U.S.C. § 2710(a)(3).
126
Second Compl. ¶ 93.
44
Viacom, by contrast, argues that static digital
identifiers, such as IP addresses, do not qualify as personally
identifiable information. It encourages us to interpret the Act
against the backdrop of the problem it was meant to rectify—
the disclosure of an actual person’s video rental history. So,
for example, Viacom points to the Senate Report, which states
that “personally identifiable information is intended to be
transaction-oriented,” meaning that it “identifies a particular
person as having engaged in a specific transaction with a
video tape service provider.”127 Viacom reads this passage to
suggest that the Act’s authors had brick-and-mortar
transactions in mind when they crafted the law. In Viacom’s
view, the information described by the plaintiffs is not
personally identifiable because it does not, by itself, identify a
particular person. Rather, it is “coded information, used for
decades to facilitate the operation of the Internet, that
theoretically could be used by the recipient to identify the
location of a connected computer”—not to unmask the
identity of a person using that computer.128
The parties’ contrasting positions reflect a fundamental
disagreement over what kinds of information are sufficiently
“personally identifying” for their disclosure to trigger liability
under the Video Privacy Protection Act. At one end of the
spectrum, of course, is a person’s actual name. Then there are
pieces of information, such as a telephone number or a
physical address, which may not by themselves identify a
particular person but from which it would likely be possible to
identify a person by consulting publicly available sources,
127
Senate Report at 12.
128
Viacom Br. at 16.
45
such as a phone book or property records. Further down the
spectrum are pieces of information, like social security
numbers, which are associated with individual persons but
might not be easily matched to such persons without
consulting another entity, such as a credit reporting agency or
government bureau.
The kind of information at issue here—static digital
identifiers—falls even further down the spectrum. To an
average person, an IP address or a digital code in a cookie file
would likely be of little help in trying to identify an actual
person. A great deal of copyright litigation, for example,
involves illegal downloads of movies or music online. Such
suits often begin with a complaint against a “John Doe”
defendant based on an Internet user’s IP address. Only later,
after the plaintiff has connected the IP address to an actual
person by means of a subpoena directed to an Internet service
provider, is the complaint amended to reflect the defendant’s
name.129
Numerous district courts have grappled with the
question of whether the Video Privacy Protection Act applies
to static digital identifiers. Most have followed the rule
adopted in In re Hulu Privacy Litigation.130 The court there
129
See, e.g., Warner Bros. Records Inc. v. Walker, 704 F.
Supp. 2d 460, 463 (W.D. Pa. 2010) (“Plaintiffs initially filed
this action as a ‘Doe’ lawsuit and subsequently amended the
Complaint after Defendant’s identity was obtained from
Allegheny College pursuant to a Rule 45 subpoena.”).
130
No. 11-cv-3764 (LB), 2014 WL 1724344 (N.D. Cal.
Apr. 28, 2014).
46
concluded that static digital identifiers that could, in theory,
be combined with other information to identify a person do
not count as “personally identifiable information” under the
Act, at least by themselves.131 Other decisions are in
accord.132
The district courts have not, however, been unanimous.
The plaintiffs direct us to Yershov v. Gannett Satellite
Information Network, Inc.133 The plaintiff there downloaded
USA Today’s free application onto his smartphone. He
alleged that Gannett, which publishes USA Today, shared
information about videos he watched on his phone with a
third-party analytics company, Adobe Systems, Inc. The
information did not include the plaintiff’s name or address,
but rather his cell phone identification number and his GPS
coordinates at the time he viewed a particular video.134
Rejecting the approach taken in Hulu, Yershov concluded that
131
Id. at *11 (concluding that “a unique anonymized ID
alone is not [personally identifiable information] but context
could render it not anonymous and the equivalent of the
identification of a specific person”).
132
See, e.g., Robinson v. Disney Online, --- F. Supp. 3d ---,
2015 WL 6161284, at *6 (S.D.N.Y. 2015); Eichenberger v.
ESPN, Inc., No. 14-cv-463 (TSZ), 2015 WL 7252985, at *4–5
(W.D. Wash. May 7, 2015); Ellis v. Cartoon Network, Inc.,
No. 14-cv-484 (TWT), 2014 WL 5023535, at *3 (N.D. Ga.
Oct. 8, 2014), aff’d on other grounds, 803 F.3d 1251
(11th Cir. 2015).
133
104 F. Supp. 3d 135 (D. Mass. 2015).
134
Id. at 138.
47
any unique identifier—including a person’s smartphone ID—
is personally identifiable information. It recognized that, in
asking it to reach this conclusion, the plaintiff was
“attempt[ing] to place a square peg (modern electronic
technology) into a round hole (a statute written in 1988 aimed
principally at videotape rental services).”135 Even so, the
court stated that the Act applied to the disclosure of static
identifiers that could theoretically permit a company like
Adobe Systems to identify an individual video watcher.136
The First Circuit recently affirmed that conclusion.137
In our view, the proper meaning of the phrase
“personally identifiable information” is not straightforward.
As a textual matter, “[t]he precise scope” of such information
“is difficult to discern from the face of the statute—whether
135
Id. at 140.
136
Id. at 145–46 (discussing Nickelodeon I and stating that
its “conclusion that ‘[personally identifiable information] is
information which must, without more, itself link an actual
person to actual video materials’ is flawed”).
137
Yershov v. Gannett Satellite Info. Network, Inc.,
--- F.3d ---, 2016 WL 1719825, at *2–3 (1st Cir. 2016).
Despite its expansive interpretation of what qualifies as
personally identifiable information, the district court in
Yershov concluded that the plaintiff in that case was not a
“subscriber” within the meaning of the Video Privacy
Protection Act and therefore dismissed the case. The First
Circuit reached the opposite conclusion and remanded the
case for further proceedings. See id. at *3–6.
48
read in isolation or in its broader statutory context.”138 As a
practical matter, norms about what ought to be treated as
private information on the Internet are both constantly in flux
and often depend on the novelty of the technology at issue.
Even so, we find Viacom’s narrower understanding of what
constitutes “personally identifiable information” under the
Act more persuasive than the alternative offered by the
plaintiffs.
We begin with principles of statutory interpretation.
We have said that when “the text [of a statute] is ambiguous
or does not reveal congressional intent ‘with sufficient
precision’ to resolve our inquiry[,] . . . ‘a court traditionally
refers to the legislative history and the atmosphere in which
the statute was enacted in an attempt to determine the
congressional purpose.’”139 Likewise, the Supreme Court had
instructed us that “[w]hen technological change has rendered
its literal terms ambiguous, [a law] must be construed in light
of [its] basic purpose.”140 Our review of the legislative
history convinces us that Congress’s purpose in passing the
Video Privacy Protection Act was quite narrow: to prevent
disclosures of information that would, with little or no extra
138
Disney, 2015 WL 6161284, at *2.
139
Jensen v. Pressler & Pressler, 791 F.3d 413, 418
(3d Cir. 2015) (quoting, in succession, Allen ex rel. Martin v.
LaSalle Bank, N.A., 629 F.3d 364, 367 (3d Cir. 2011), and In
re Lord Abbett Mut. Funds Fee Litig., 553 F.3d 248, 254
(3d Cir. 2009)).
140
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151,
156 (1975) (interpreting the Copyright Act).
49
effort, permit an ordinary recipient to identify a particular
person’s video-watching habits. We do not think that, when
Congress passed the Act, it intended for the law to cover
factual circumstances far removed from those that motivated
its passage.
This becomes apparent by tracing the Video Privacy
Protection Act’s legislative history. The Senate version of the
Act was introduced in May of 1988, and the coordinate House
bill was introduced about a month later. The two bills were
considered in a joint hearing in August of 1988 before the
relevant House and Senate subcommittees.141 The then-extant
Senate bill would have punished both disclosures relating to
video tape service providers and disclosures relating to library
borrowing records.142 Senator Patrick Leahy, Chairman of the
Senate Subcommittee on Technology and the Law,
characterized the purpose of the Senate bill as follows:
Most of us rent movies at video stores and we
check out books from our community libraries.
These activities generate an enormous report of
personal activity that, if it is going to be
disclosed, makes it very, very difficult for a
141
Senate Report at 5; see also Video and Library Privacy
Protection Act of 1988: Hearing on H.R. 4947 & S. 2361
Before the Subcomm. on Courts, Civil Liberties & the Admin.
of Justice of the H. Comm. on the Judiciary & the Subcomm.
on Tech. & the Law of the S. Comm. on the Judiciary, 100th
Cong. (1988) (“Committee Report”).
142
Committee Report at 13–15 (quoting relevant text of
S. 2361).
50
person to protect his or her privacy.
It really isn’t anybody’s business what books or
what videos somebody gets. It doesn’t make
any difference if somebody is up for
confirmation as a Supreme Court Justice or they
are running the local grocery store. It is not
your business.143
Similarly, Representative Robert Kastenmeier,
Chairman of the House Subcommittee on Courts, Civil
Liberties, and the Administration of Justice, decried “attempts
to obtain patrons’ [library] records, under circumstances
that . . . would violate most peoples’ perceptions of their right
to privacy.”144 He expressed the view that “American citizens
should not have to worry that a government agent, or a
reporter, or anyone else, will be able to find out what they are
reading,” and argued that “[t]hese principles apply as much to
customers of video stores as to patrons of libraries.”145
According to the Senate Report, the provisions of the
Act relating to libraries were removed because the Senate
Judiciary Committee “was unable to resolve questions
regarding the application of such a provision for law
enforcement.”146 Even so, we think that legislators’ initial
focus on both libraries and video stores indicates that the Act
143
Id. at 18.
144
Id. at 21–22.
145
Id. at 22–23.
146
Senate Report at 8.
51
was meant to prevent disclosures of information capable of
identifying an actual person’s reading or video-watching
habits. We therefore agree with our colleagues who have
reviewed this same legislative history and concluded that the
Act “protects personally identifiable information that
identifies a specific person and ties that person to particular
videos that the person watched.”147
The plaintiffs contend that, contrary to our
interpretation, Congress intended to pass a broad statute that
would protect consumer privacy even as video-watching
technology changed over time. To be fair, there are portions
of the legislative history that might be read to support such a
view.148 The text itself is also amenable to such an
interpretation. After all, the Act says that personally
identifiable information “includes information which
identifies a person as having requested or obtained specific
video materials or services from a video tape service
147
Hulu, 2014 WL 1724344, at *8; see also Eichenberger,
2015 WL 7252985, at *4 (“The focus of this statute . . . is on
whether the disclosure by itself identifies a particular person
as having viewed a specific video.”).
148
See, e.g., Committee Report at 19 (“These bills are an
effort to keep up to date with changing technology and
changing social patterns with respect to the use of materials
which ought to be clearly private.”) (statement of
Representative Kastenmeier); id. at 55 (“These precious
[privacy] rights have grown increasingly vulnerable with the
growth of advanced information technology.”) (testimony of
Janlori Goldman, Staff Attorney, American Civil Liberties
Union).
52
provider,”149 and Congress’s use of the word “includes” could
suggest that Congress intended for future courts to read
contemporary norms about privacy into the statute’s original
text.150 But we ultimately do not think that the definition of
personally identifiable information in the Act is so broad as to
cover the kinds of static digital identifiers at issue here. This
is not to say that the Act has become a dead letter with the
demise of the corner video store. If, for example, Google
were to start purposefully leaking its customers’ YouTube
video-watching histories, we think such disclosures would
almost certainly violate the Act. But trying to analogize
between that kind of disclosure and Google’s use of cookies
on Viacom’s websites is, at best, a strained enterprise.
Nor are we persuaded by the plaintiffs’ citations to
other federal privacy laws. For example, the plaintiffs ask us
to consider how Congress used the phrase “personally
identifiable information” (or its equivalents) in (i) the
Children’s Online Privacy Protection Act,151 (ii) the Gramm-
Leach Financial Modernization Act,152 (iii) the Federal
149
18 U.S.C. § 2710(a)(3) (emphasis added).
150
See Yershov, 2016 WL 1719825, at *2 (noting that “the
word ‘includes’ . . . normally implies that the proffered
definition falls short of capturing the whole meaning”);
Senate Report at 12 (stating that the use of the word
“includes” is intended to “establish a minimum, but not
exclusive, definition of personally identifiable information”).
151
15 U.S.C. § 6501(8).
152
15 U.S.C. § 6809(4).
53
Education Rights and Privacy Act,153 and (iv) the Health
Insurance Portability and Accountability Act.154 Having done
so, we do not think that the language in these other laws is as
helpful as the plaintiffs suppose. If anything, the expansion
of privacy laws since the Video Privacy Protection Act’s
passage demonstrates that, whatever else “personally
identifiable information” meant in 1988, it did not encompass
the kind of information that Viacom allegedly disclosed to
Google.
We see this perhaps most clearly by juxtaposing the
1988 Video Privacy Protection Act with the Children’s Online
Privacy Protection Act (“COPPA”), which Congress passed a
decade later.155 That statute limits the gathering of personal
information from children under the age of 13 on the
Internet.156 It also requires parental consent for the collection,
use, or disclosure of children’s personal information online
and directs the Federal Trade Commission to issue regulations
153
20 U.S.C. § 1232g; see also 34 C.F.R. § 99.3 (defining
“personally identifiable information” in the education
context).
154
42 U.S.C. § 1320d(6).
155
Pub. L. No. 105-277, Div. C, Title XIII, §§ 1301–1308,
112 Stat. 2681–728, codified at 15 U.S.C. §§ 6501–6506.
156
15 U.S.C. § 6501(1) (defining the term “child” to mean
“an individual under the age of 13”), 6501(10)(A)(i)–(ii)
(stating that a website “directed to children” is “a commercial
website or online service that is targeted to children” or “that
portion of a commercial website or online service that is
targeted to children”).
54
to that effect.157 The statute defines “personal information” to
include:
[A] first and last name; a home or other physical
address . . . ; an e-mail address; a telephone
number; a Social Security number; any other
identifier that the [Federal Trade Commission]
determines permits the physical or online
contacting of a specific individual; or
information concerning the child or the parents
of that child that the website collects online
from the child and combines with an identifier
described in this paragraph.158
The Federal Trade Commission has promulgated two
successive rules under this provision. The first, which
became effective in April of 2000,159 defined “personal
information” to include not only the kinds of information
enumerated in the text of the law, but also “[a] persistent
identifier, such as a customer number held in a cookie or a
157
Id. § 6502(a)(1) (requiring compliance with regulations),
6502(b)(1) (delegating authority to the Commission),
6502(b)(1)(A)(ii) (directing the Commission to establish
regulations requiring the “verifiable parental consent for the
collection, use, or disclosure of personal information from
children”).
158
Id. § 6501(8)(A)–(G).
159
See Children’s Online Privacy Protection Rule, 64 Fed.
Reg. 59,888 (Nov. 3, 1999), available at 1999 WL 990699
(promulgating final rule to be codified at 16 C.F.R. § 312).
55
processor serial number, where such identifier is associated
with individually identifiable information.”160 An updated
regulation, effective in July of 2013,161 expanded this
definition to include any “persistent identifier that can be used
to recognize a user over time and across different Web sites or
online services,” including but not limited to “a customer
number held in a cookie, an Internet Protocol (IP) address, a
processor or device serial number, or unique device
identifier.”162
It seems clear that the Commission’s updated
definition of “personal information” comes much closer to
capturing, if not wholly covering, the kinds of information at
issue in this case.163 But that is of little help to the plaintiffs’
present claim. Instead, the evolution of these regulations
demonstrates that, when Congress passed COPPA, it gave the
Federal Trade Commission authority to expand the types of
160
16 C.F.R. § 312.2 (2000).
161
Children’s Online Privacy Protection Rule, 78 Fed. Reg.
3,972 (Jan. 17, 2013), available at 2013 WL 169584
(promulgating updated rule).
162
16 C.F.R. § 312.2 (2013) (emphasis added).
163
The Federal Trade Commission’s first definition of
“personal information” would seemingly not cover the kind of
information at issue here because, while that definition did
include a reference to numerical codes stored in cookies, it
also required such codes to be linked to the other kinds of
information listed in the statute. Gender and birthdate, the
two kinds of information Viacom allegedly collected when
children signed up for its websites, are not on that list.
56
information that count as personally identifying under that
law. In this way, Congress built flexibility into the statute to
keep pace with evolving technology. The Video Privacy
Protection Act, by contrast, does not empower an
administrative agency to augment the definition of
“personally identifiable information” in light of changing
circumstances or new technologies. The meaning of that
phrase in the Act is, it would appear, more static.
Subsequent developments confirm this view. Congress
amended the Video Privacy Protection in 2013,164 modifying
those provisions of the law governing how a consumer can
consent to the disclosure of personally identifiable
information.165 The legislative history of the 2013
amendments demonstrates that Congress was keenly aware of
how technological changes have affected the original Act. As
one Senate report put it:
At the time of the [1988 law’s] enactment,
consumers rented movies from video stores.
The method that Americans used to watch
videos in 1988—the VHS cassette tape—is now
164
Pub. L. No. 112-258, 126 Stat. 2414. While Congress
did not pass the law until January of 2013, it is titled the
“Video Privacy Protection Act Amendments Act of 2012.”
165
See Ellis, 803 F.3d at 1253 (explaining that these
“changes allowed consumers greater flexibility to share their
video viewing preferences, while maintaining their privacy,
by clarifying that video tape service providers may obtain
informed, written consent of consumers on an ongoing basis
via the Internet”).
57
obsolete. In its place, the Internet has
revolutionized the way that American
consumers rent and watch movies and television
programs. Today, so-called “on-demand” cable
services and Internet streaming services allow
consumers to watch movies or TV shows on
televisions, laptop computers, and cell
phones.166
Despite this recognition, Congress did not update the
definition of personally identifiable information in the
statute.167 What’s more, it chose not to do so despite the fact
that the amicus supporting the plaintiffs here, the Electronic
Privacy Information Center, submitted written testimony that
included the following exhortation:
[T]he Act does not explicitly include Internet
Protocol (IP) Addresses in the definition [of
personally identifiable information].
IP addresses can be used to identify users and
link consumers to digital video rentals. They
are akin to Internet versions of consumers’
home telephone numbers. . . . We would
propose the addition of Internet Protocol (IP)
Addresses and account identifiers to the
166
S. Rep. No. 112-258, at 2 (2012).
167
See H.R. Rep. No. 112-312, at 3 (2011) (noting that the
updated version of the legislation “does not change . . . the
definition of ‘personally identifiable information’”).
58
definition of [personally identifiable
information] . . . .168
We think Congress’s decision to retain the 1988
definition of personally identifiable information indicates that
the Act serves different purposes, and protects different
constituencies, than other, broader privacy laws. We of
course appreciate that the passage of time often requires
courts to apply old laws in new circumstances.169 Assessing
congressional intent in these cases can be difficult; indeed,
Congress may not have considered the temporal problem at
all. But here, our task is made easier by the fact that Congress
has recently revisited the Video Privacy Protection Act and,
despite the passage of nearly thirty years since its enactment,
left the law almost entirely unchanged. We have previously
explained that “the weight given subsequent legislation and
whether it constitutes a clarification or a repeal is a context-
168
The Video Privacy Protection Act: Protecting Viewer
Privacy in the 21st Century: Hearing Before the Subcomm.
on Privacy, Tech. and the Law of the S. Comm. on the
Judiciary, 112th Cong. 59–60 (2012).
169
See, e.g., Del. Dep’t of Nat. Res. & Envtl. Control v. U.S.
Army Corps of Eng’rs, 685 F.3d 259, 284 (3d Cir. 2012)
(stating that it would arguably “be irrational” to interpret a
statutory directive to “maintain navigation,” inserted into a
law in 1977, “to encompass only those activities that preserve
bodies of water as they existed in 1977”); United States v.
Dire, 680 F.3d 446, 467 (4th Cir. 2012) (concluding that
Congress defined piracy in 1819 to reflect the evolving “law
of nations” and rejecting the proposition “that the definition
of general piracy was fixed in the early Nineteenth Century”).
59
and fact-dependent inquiry,”170 and “we may pay heed to the
significance of subsequent legislation when it is apparent
from the facts and context that it bears directly on Congress’s
own understanding and intent.”171 We think Congress’s
decision to leave the Act’s 1988 definition of personally
identifiable information intact, despite recently revisiting the
law, is one of those instances.
Nor does our decision today create a split with our
colleagues in the First Circuit. In interpreting the meaning of
personally identifiable information in Yershov, the First
Circuit focused on the fact that the defendant there allegedly
disclosed not only what videos a person watched on his or her
smartphone, but also the GPS coordinates of the phone’s
location at the time the videos were watched. In the First
Circuit’s view, “[g]iven how easy it is to locate a GPS
coordinate on a street map, this disclosure would enable most
people to identify what are likely the home and work
addresses of the viewer (e.g., Judge Bork’s home and the
federal courthouse).”172 That conclusion merely demonstrates
that GPS coordinates contain more power to identify a
specific person than, in our view, an IP address, a device
identifier, or a browser fingerprint. Yershov itself
acknowledges that “there is certainly a point at which the
170
Bd. of Trs. of IBT Local 863 Pension Fund v. C & S
Wholesale Grocers, Inc., 802 F.3d 534, 546 (3d Cir. 2015).
171
Sikkelee v. Precision Airmotive Corp., --- F.3d ---, 2016
WL 1567236, at *14 (3d Cir. 2016).
172
Yershov, 2016 WL 1719825, at *3 (internal footnote
omitted).
60
linkage of information to identity becomes too uncertain, or
too dependent on too much yet-to-be-done, or unforeseeable
detective work” to trigger liability under this statute.173 We
believe the information allegedly disclosed here is on that side
of the divide.174
Of course, what we have said so far addresses the
question of what counts as personally identifiable information
in the abstract. The wrinkle in this case is that the party to
173
Id.
174
We note, however, that even a numeric identifier might
qualify as personally identifiable information, at least in
certain circumstances. In Hulu, for example, the plaintiffs
alleged that when someone visited Hulu’s website and
watched a video, Hulu would display a Facebook “Like”
button next to that video by sending a coded request to
Facebook’s servers. Before sending that request, Hulu would
check to see if the user already had cookies on his or her
machine indicating that the user was a Facebook member. If
so, Hulu would transmit that coded information to Facebook
when it requested a “Like” button in such a way that
Facebook could easily identify an account holder’s video
preferences. See Hulu, 2014 WL 1724344, at *5.
Hulu concluded that such communications were “not merely
the transmission of a unique, anonymous ID,” but rather the
disclosure of “information that identifies the Hulu user’s
actual identity on Facebook,” which, in the court’s view, was
sufficient to count as personally identifiable information.
Id. at *13. Whether we would reach a similar conclusion on
analogous facts we leave to a later case.
61
whom the plaintiffs’ information was disclosed is Google, a
company whose entire business model is purportedly driven
by the aggregation of information about Internet users. The
plaintiffs assert that Google can identify web users in the real
world, and indeed seem to believe that Google, which
purportedly “knows more details about American consumers
than any company in history,”175 aggregates so much
information that it has, in effect, turned the Internet into its
own private data collection machine. Or, as the plaintiffs’
amicus, the Electronic Privacy Information Center, puts it,
concluding “that Google is unable to identify a user based on
a combination of IP address . . . and other browser cookie
data . . . would be like concluding the company that produces
the phone book is unable to deduce the identity of an
individual based on their telephone number.”176
Whether or not this is true, we do not think that a law
from 1988 can be fairly read to incorporate such a
contemporary understanding of Internet privacy. The
allegation that Google will assemble otherwise anonymous
pieces of data to unmask the identity of individual children is,
at least with respect to the kind of identifiers at issue here,
simply too hypothetical to support liability under the Video
Privacy Protection Act.
The argument also lacks a limiting principle. What
makes the claim about Google’s ubiquity so intuitively
attractive is the size of Google’s user base. Indeed, Google is
large enough that we might well suppose that a significant
175
Pls. Br. at 10.
176
Electronic Privacy Information Center Br. at 6.
62
number of its account holders also have children who watch
videos on Viacom’s websites. But that seems like distinction
without a difference. If an IP address were to count as
personally identifiable information, either standing alone or
coupled with similar data points, then the disclosure of an
IP address to any Internet company with registered users
might trigger liability under the Act. Indeed, the import of the
plaintiffs’ position seems to be that the use of third-party
cookies on any website that streams video content is
presumptively illegal. We do not think the Video Privacy
Protection Act sweeps quite so broadly.
We recognize that our interpretation of the phrase
“personally identifiable information” has not resulted in a
single-sentence holding capable of mechanistically deciding
future cases. We have not endeavored to craft such a rule, nor
do we think, given the rapid pace of technological change in
our digital era, such a rule would even be advisable.177
Rather, we have tried to articulate a more general framework.
In our view, personally identifiable information under the
Video Privacy Protection Act means the kind of information
that would readily permit an ordinary person to identify a
specific individual’s video-watching behavior. The classic
example will always be a video clerk leaking an individual
customer’s video rental history. Every step away from that
177
Pursuant to the First Circuit’s reasoning in Yershov, if
technology were to develop permitting an ordinary person to
type an IP address into a search engine and reveal the identity
of the person whose computer was associated with that
IP address, the same facts alleged here might well result in a
different outcome than the one we reach today.
63
1988 paradigm will make it harder for a plaintiff to make out
a successful claim. Some disclosures predicated on new
technology, such as the dissemination of precise GPS
coordinates or customer ID numbers, may suffice. But
others—including the kinds of disclosures described by the
plaintiffs here—are simply too far afield from the
circumstances that motivated the Act’s passage to trigger
liability.
Our decision necessarily leaves some unanswered
questions about what kinds of disclosures violate the Video
Privacy Protection Act. Such uncertainty is ultimately a
consequence of our common-law system of adjudication and
the rapid evolution of contemporary technology. In the
meantime, companies in the business of streaming digital
video are well advised to think carefully about customer
notice and consent. Whether other kinds of disclosure will
trigger liability under the Act is another question for another
day.
B. Intrusion upon Seclusion
Lastly, we turn to the plaintiffs’ claim that Viacom and
Google unlawfully invaded their privacy. In New Jersey,
invasion of privacy is an umbrella category that includes a
64
number of distinct torts.178 The plaintiffs assert that the
defendants committed the tort of intrusion upon seclusion, a
type of invasion of privacy involving encroachment on a
person’s reasonable expectations of solitude. They rest this
claim on the allegation that the Nickelodeon website included
a message that read: “HEY GROWN-UPS: We don’t collect
ANY personal information about your kids. Which means we
couldn’t share it even if we wanted to!”179 This message
appeared on the webpage that children used to register for
website accounts, apparently to calm parental fears over the
tracking of their children’s online activities. In light of this
message, the plaintiffs assert that Viacom collected personal
information about children, and permitted Google to do the
same, despite its assurances that it would not collect “ANY
personal information” at all.
1. The Plaintiffs’ Intrusion Claim Is
Not Preempted
We begin with a threshold issue. Viacom argues that
the plaintiffs’ intrusion claim is preempted by COPPA, which
bars state governments from “impos[ing] any liability for
commercial activities” in a way that is “inconsistent with
178
See Rumbauskas v. Cantor, 649 A.2d 853, 856
(N.J. 1994) (explaining that invasion of privacy “is not one
tort, but a complex of four . . . tied together by the common
name, but otherwise hav[ing] almost nothing in common
except that each represents an interference with the right of
the plaintiff ‘to be let alone’” (quoting William L. Prosser,
The Law of Torts § 112 (3d ed. 1964)).
179
Second Compl. ¶ 103.
65
[COPPA’s] treatment of those activities.”180 As we discussed
previously, COPPA directs the Federal Trade Commission to
issue rules regarding the “collection, use, or disclosure of
personal information from children” online, including rules
governing parental notice and consent.181 Since the
Commission only recently updated its definition of “personal
information” to include the kinds of static digital identifiers
(such as IP addresses) that underlie the plaintiffs’ allegations,
Viacom asserts that the plaintiffs’ intrusion claim is
“inconsistent” with the treatment of such information under
COPPA.182
In making this argument, Viacom faces an uphill
battle. This is because we apply a general presumption
against preemption, meaning that, “[i]n areas of traditional
state regulation, we assume that a federal statute has not
supplanted state law unless Congress has made such an
intention ‘clear and manifest.’”183 This presumption “is
relevant even when there is an express pre-emption
clause . . . because when the text of a pre-emption clause is
susceptible of more than one plausible reading, courts
180
15 U.S.C. § 6502(d).
181
Id. § 6502(b)(1)(A).
182
See Viacom Br. at 38 (citing 15 U.S.C. § 6502(d)).
183
MD Mall Assocs., LLC v. CSX Transp., Inc., 715 F.3d
479, 489 (3d Cir. 2013), as amended (May 30, 2013) (quoting
Bates v. Dow Agrosciences, LLC, 544 U.S. 431, 449 (2005)).
66
ordinarily accept the reading that disfavors pre-emption.”184
The Supreme Court has also made clear that, even when
federal laws have preemptive effect in some contexts, states
generally retain their right “to provide a traditional damages
remedy for violations of common-law duties when those
duties parallel federal requirements.”185
The question we confront, therefore, is whether the
plaintiffs’ intrusion claim is truly “inconsistent” with the
obligations imposed by COPPA, or whether the plaintiffs’
intrusion claim rests on common-law duties that are
compatible with those obligations. Because we reach the
latter conclusion, Viacom’s preemption argument is
unavailing.
In our view, the wrong at the heart of the plaintiffs’
intrusion claim is not that Viacom and Google collected
children’s personal information, or even that they disclosed it.
Rather, it is that Viacom created an expectation of privacy on
its websites and then obtained the plaintiffs’ personal
information under false pretenses. Understood this way, there
is no conflict between the plaintiffs’ intrusion claim and
COPPA. While COPPA certainly regulates whether personal
information can be collected from children in the first
184
Id. (quoting Franks Inv. Co. LLC v. Union Pac. R.R. Co.,
593 F.3d 404, 407 (5th Cir. 2010) (additional internal
quotation marks omitted)).
185
Medtronic, Inc. v. Lohr, 518 U.S. 470, 495 (1996); see
also Riegel v. Medtronic, Inc., 552 U.S. 312, 330 (2008)
(continuing to recognize that “parallel” state-law claims may
be permissible even in the context of express preemption).
67
instance, it says nothing about whether such information can
be collected using deceitful tactics. Applying the presumption
against preemption, we conclude that COPPA leaves the
states free to police this kind of deceptive conduct.186
Indeed, we confronted a similar allegation last year in
Google. The plaintiffs there alleged that Google had evaded
browser-based cookie blockers even as “it held itself out as
respecting” them.187 We concluded that the alleged gap
between Google’s public-facing comments and its actual
behavior was problematic enough for a jury to conclude that
Google committed “an egregious breach of social norms.”188
In our view, the problem was not disclosure per se. Rather,
“[w]hat [was] notable . . . [was] how Google accomplished its
tracking”—i.e., through “deceit and disregard . . . [that]
186
One might argue that if the kinds of static digital
identifiers at issue here do not count as personally identifiable
information under the Video Privacy Protection Act, they
cannot count as “personal information” of the sort that
Viacom promised not to collect. We disagree. First, the
phrase “personally identifiable information” in the Act is a
term of art properly understood in its legislative and historical
context. Second, the meaning of Viacom’s promise to
parents—“We don’t collect ANY personal information about
your kids”—is better left to a reasonable factfinder who can
interpret that guarantee just as any other layperson browsing
the Nickelodeon website might do so.
187
Google, 806 F.3d at 151.
188
Id. (quoting the Google plaintiffs’ complaint)
68
raise[d] different issues than tracking or disclosure alone.”189
In those circumstances, “a reasonable factfinder could indeed
deem Google’s conduct highly offensive or an egregious
breach of social norms.”190 We think the same is true here.191
Accordingly, we conclude that COPPA does not
preempt the plaintiffs’ state-law claim for intrusion upon
seclusion.
2. The Plaintiffs Have Adequately
Alleged an Intrusion Claim
The next question is whether the plaintiffs have
adequately alleged the elements of an intrusion claim. The
189
Id. at 150 (emphasis in original).
190
Id. at 151 (internal quotation marks omitted).
191
While consideration of what a reasonable jury might
conclude is normally appropriate at the summary judgment
stage, we think it is also appropriate here given the nature of
the common law tort at issue. In Google, for example, we
considered the plaintiffs’ allegations from the perspective of a
reasonable factfinder because, under California law, privacy
torts involve mixed questions of law and fact. See id. at 150
n.119. New Jersey law appears to be similar. Cf. Castro v.
NYT Television, 895 A.2d 1173, 1177–78 (N.J. Super. Ct.
App. Div. 2006) (noting that “a trier of fact could find that the
videotaping of some patients at Jersey Shore would not
support imposition of liability for invasion of privacy,” but
could also find that “[the defendant’s] videotaping of other
patients satisfied all the elements of this cause of action”).
69
New Jersey Supreme Court, looking to the Second
Restatement of Torts, has said that intrusion upon seclusion
occurs whenever a plaintiff can show (i) an intentional
intrusion (ii) upon the seclusion of another that is (iii) highly
offensive to a reasonable person.192 At least with respect to
Viacom, we conclude that the plaintiffs have adequately
alleged each of these three elements.
First, the plaintiffs have successfully alleged an
“intentional intrusion.” We considered this issue in
O’Donnell v. United States, where we stated that “an actor
193
commits an intentional intrusion only if he believes, or is
substantially certain, that he lacks the necessary legal or
personal permission to commit the intrusive act.”194 The
defendants contend that O’Donnell bars the present claim
because, after all, they installed cookies on the plaintiffs’
192
Hennessey v. Coastal Eagle Point Oil Co., 609 A.2d 11,
17 (N.J. 1992) (citing Restatement (Second) of Torts § 652B
(1977)).
193
891 F.2d 1079 (3d Cir. 1989).
194
Id. at 1083 (emphasis in original). While O’Donnell
arose under Pennsylvania rather than New Jersey law, we
concluded that the Pennsylvania Supreme Court was likely to
adopt the definition of intrusion upon seclusion included in
the Second Restatement of Torts. See id. at 1082 n.1. The
Pennsylvania Supreme Court later did so in Burger v. Blair
Medical Associates, 964 A.2d 374, 379 & n.5 (Pa. 2004).
Since the highest courts of both New Jersey and Pennsylvania
have looked to the same treatise, we are comfortable adopting
our reasoning in O’Donnell for present purposes.
70
computers under the belief that doing so was perfectly legal.
While we appreciate the force of this argument, we do not
think that the plaintiffs’ claim is so easily scuttled.
In the first place, O’Donnell is factually
distinguishable. That case involved the allegedly unlawful
disclosure of medical records by the Veterans Administration.
Discovery revealed that “O’Donnell had authorized the
[Veterans Administration] on previous occasions to view
these records and disclose them.”195 We therefore concluded
that there was “no dispute of material fact concerning
the . . . lack of any intention to invade the plaintiff’s right to
seclusion and privacy.”196 The allegations here, by contrast,
are devoid of any suggestion that the plaintiffs ever
authorized Viacom and Google to collect or disclose their
personal information.
Indeed, O’Donnell itself focused on whether the
alleged intrusion occurred without “legal or personal
permission.”197 Courts applying O’Donnell have
appropriately treated the presence or absence of consent as a
195
O’Donnell, 891 F.2d at 1083.
196
Id.
197
Id. (emphasis added).
71
key factor in making this assessment.198 Whatever else the
plaintiffs allege, they clearly assert that the defendants tracked
their online behavior without their permission to do so. We
therefore conclude that, accepting their factual allegations as
true, the plaintiffs have successfully stated the first element of
an intrusion claim.
Second, the plaintiffs have adequately alleged that the
defendants invaded their privacy. We have embraced the
Second Restatement’s view that liability for intrusion only
arises “when [the defendant] has intruded into a private place,
or has otherwise invaded a private seclusion that the plaintiff
has thrown about his person or affairs.”199 We think that a
reasonable factfinder could conclude that Viacom’s promise
not to collect “ANY personal information” from children
itself created an expectation of privacy with respect to
198
See, e.g., Gabriel v. Giant Eagle, Inc., 124 F. Supp. 3d
550, 572 (W.D. Pa. 2015) (stating there was no intrusion
claim where the personal information in question was
“voluntarily provided” to the defendant); Muhammad v.
United States, 884 F. Supp. 2d 306, 317 (E.D. Pa. 2012)
(concluding that the plaintiff adequately alleged intrusion by
federal agents who, among other actions, entered his home
“without consent or a search warrant”); Jevic v. Coca Cola
Bottling Co. of N.Y., No. 89-cv-4431 (NHP), 1990 WL
109851, at *9 (D.N.J. June 6, 1990) (“[O]ne cannot intrude
when one has permission.”).
199
Kline v. Sec. Guards, Inc., 386 F.3d 246, 260 (3d Cir.
2004) (quoting Harris v. Easton Publ’g Co., 483 A.2d 1377,
1383 (Pa. Super. Ct. 1984) (citing Restatement (Second) of
Torts § 652B cmt. c)).
72
browsing activity on the Nickelodeon website.
Third, the plaintiffs have adequately alleged, at least
with respect to Viacom, that the intrusion on their privacy was
“highly offensive to the ordinary reasonable man.”200 The
defendants disagree, contending that the use of cookies for
benign commercial purposes has become so widely accepted a
part of Internet commerce that it cannot possibly be
considered “highly offensive.” They also assert that the
intrusion tort is more appropriately reserved for punishing
behavior that is so offensive as to inspire out-and-out
revulsion, as opposed to policing online business practices.201
The District Court felt the same way, concluding that the
plaintiffs never explained “how Defendants’ collection and
monetization of online information would be offensive to the
reasonable person, let alone exceedingly so.”202
200
Stengart v. Loving Care Agency, Inc., 990 A.2d 650, 660
(N.J. 2010) (quoting Restatement (Second) of Torts § 652B
cmt. d).
201
See, e.g., Leang v. Jersey City Bd. of Educ., 969 A.2d
1097, 1115–17 (N.J. 2009) (permitting an intrusion upon
seclusion claim to proceed where a coworker falsely reported
that a teacher was threatening to kill people, leading to
hospitalization and physically invasive searches); Soliman v.
Kushner Cos., Inc., 77 A.3d 1214, 1225–26 (N.J. Super. Ct.
App. Div. 2013) (permitting a claim to proceed where the
defendant installed hidden video cameras in bathrooms).
202
Nickelodeon I, 2014 WL 3012873, at *19; see also
Nickelodeon II, 2015 WL 248334, at *5–6 (adhering to prior
opinion).
73
With respect to Google, we agree with the District
Court. As Google fairly points out, courts have long
understood that tracking cookies can serve legitimate
commercial purposes.203 The plaintiffs do not challenge the
proposition that the use of “cookies on websites geared
toward adults” is generally acceptable,204 instead falling back
on the claim that the use of cookies to track children is
particularly odious. We are not so sure. Google used third-
party cookies on Nick.com in the same way that it deploys
cookies on myriad others websites. Its decision to do so here
does not strike us as sufficiently offensive, standing alone, to
survive a motion to dismiss.205
As to Viacom, however, our conclusion is different. In
the same way that Viacom’s message to parents about not
collecting children’s personal information may have created
203
See, e.g., In re DoubleClick Inc. Privacy Litig., 154 F.
Supp. 2d 497, 519 (S.D.N.Y. 2001) (“DoubleClick’s purpose
has plainly not been to perpetuate torts on millions of Internet
users, but to make money by providing a valued service to
commercial Web sites.”).
204
Pls. Reply Br. at 29.
205
Accordingly, we agree with the view of our colleagues,
previously expressed in a non-precedential opinion, that
courts may decide the “‘highly offensive’ issue as a matter of
law at the pleading stage when appropriate.” Boring v.
Google, Inc., 362 F. App’x 273, 279–80 (3d Cir. 2010)
(affirming dismissal of a lawsuit alleging that Google invaded
the plaintiffs’ privacy when its “Street View” truck took
photographs of the road outside their house).
74
an expectation of privacy on Viacom’s websites, it also may
have encouraged parents to permit their children to browse
those websites under false pretenses. We recognize that some
cases suggest that a violation of a technology company’s
privacy-related terms of service is not offensive enough to
make out a claim for invasion of privacy.206 Even so, our
decision in Google compels us to reach a different result. Just
as Google concluded that a company may commit intrusion
upon seclusion by collecting information using duplicitous
tactics, we think that a reasonable jury could reach a similar
conclusion with respect to Viacom.
We will therefore affirm the District Court’s dismissal
of the intrusion upon seclusion claim with respect to Google.
With respect to Viacom, however, we will vacate the District
Court’s dismissal and remand for further proceedings.
IV. Conclusion
Several of the plaintiffs’ claims are no longer viable
after Google. These include their claims under the Wiretap
Act, the Stored Communications Act, and the California
Invasion of Privacy Act. The plaintiffs’ claim under the New
Jersey Computer Related Offenses Act is also unavailing.
The plaintiffs have also failed to state a claim under
206
See, e.g., Yunker v. Pandora Media, Inc., No. 11-cv-3113
(JSW), 2013 WL 1282980, at *15 (N.D. Cal. Mar. 26, 2013)
(relying on California precedent to conclude that the
disclosure of personal information in purported violation of
music streaming company’s terms of service was not highly
offensive).
75
the Video Privacy Protection Act. Their claim against Google
fails because the Act permits the plaintiffs to sue only entities
that disclose protected information, not parties, such as
Google, alleged to be mere recipients of it. Their claim
against Viacom fails because the definition of personally
identifiable information in the Act does not extend to the kind
of static digital identifiers allegedly disclosed by Viacom to
Google.
Lastly, we will partially vacate the District Court’s
dismissal of the plaintiffs’ claim for intrusion upon seclusion.
Google teaches that such a claim may be strong enough to
survive a motion to dismiss when a company promises to
respect consumer privacy and then disregards its commitment.
The plaintiffs have adequately alleged that Viacom collected
personal information about children despite its promise not to
do so, and we further believe that a reasonable jury could
conclude that Viacom’s conduct in breach of its promise was
highly offensive under New Jersey law.
We will therefore affirm the District Court’s dismissal
of all claims except the plaintiffs’ claim against Viacom for
intrusion upon seclusion, which we will remand for further
proceedings consistent with this Opinion.
76