Chad Eichenberger v. ESPN, Inc.

Filing

FILED OPINION (SUSAN P. GRABER, MARY H. MURGUIA and MORGAN B. CHRISTEN) AFFIRMED. Judge: SPG Authoring FILED AND ENTERED JUDGMENT. [10670705]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CHAD EICHENBERGER,
Plaintiff-Appellant,
v.

No. 15-35449
D.C. No.
2:14-cv-00463-TSZ

ESPN, INC., a Delaware
corporation,
Defendant-Appellee.

OPINION

Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, Senior District Judge, Presiding
Argued and Submitted October 3, 2017
Pasadena, California
Filed November 29, 2017
Before: Susan P. Graber, Mary H. Murguia,
and Morgan Christen, Circuit Judges.
Opinion by Judge Graber

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EICHENBERGER V. ESPN
SUMMARY*

Video Privacy Protection Act
The panel affirmed the district court’s dismissal under
Fed. R. Civ. 12(b)(6) of an action alleging that ESPN, Inc.
disclosed the plaintiff’s “personally identifiable information”
in violation of the Video Privacy Protection Act of 1998 by
giving a third party, Adobe Analytics, the plaintiff’s Roku
device serial number and by identifying videos he watched
through the WatchESPN application.
The panel rejected ESPN’s contention that the plaintiff
lacked standing. The panel held that every disclosure of an
individual’s “personally identifiable information” and videoviewing history offends the interests that the statute protects,
and that the plaintiff need not allege any further harm to have
standing.
The panel held that “personally identifiable information”
under the statute means only that information that would
readily permit an ordinary person to identify a specific
individual’s video-watching behavior.
Applying that
definition here, the panel concluded that an ordinary person
could not use the information that ESPN allegedly disclosed
to identify an individual, because the allegedly-disclosed
information cannot identify an individual unless it is
combined with other data in Adobe’s possession—data that
ESPN never disclosed and apparently never even possessed.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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The panel concluded that the plaintiff therefore failed to state
a claim under Rule 12(b)(6).

COUNSEL
John A. Lawson (argued), Roger Perlstadt, and Ryan D.
Andrews, Edelson PC, Chicago, Illinois, for PlaintiffAppellant.
Daniel P. Collins (argued) and Glenn D. Pomerantz, Munger
Tolles & Olson LLP, Los Angeles, California; Bryan H.
Heckenlively, Jonathan H. Blavin, and Rosemarie T. Ring,
Munger Tolles & Olson LLP, San Francisco, California; AnaMaria Popp, Cairncross & Hempelmann P.C., Seattle,
Washington; for Defendant-Appellee.
Marc Rotenerg and Alan Butler, Washington, D.C., as and for
Amicus Curiae Electronic Privacy Information Center.

OPINION
GRABER, Circuit Judge:
Plaintiff Chad Eichenberger alleges that Defendant ESPN,
Inc. violated the Video Privacy Protection Act of 1988
(“VPPA”), which bars a “video tape service provider” from
knowingly disclosing “personally identifiable information
concerning any consumer of such provider.” 18 U.S.C.
§ 2710(b)(1). The district court dismissed the action under
Federal Rule of Civil Procedure 12(b)(6) on the ground that
the operative complaint fails to state a claim that the

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EICHENBERGER V. ESPN

information disclosed was “personally identifiable
information” within the meaning of the VPPA. We affirm.
FACTUAL AND PROCEDURAL HISTORY
We accept as true all factual allegations in the operative
complaint, and we construe them in the light most favorable
to Plaintiff as the non-moving party. Mollett v. Netflix, Inc.,
795 F.3d 1062, 1065 (9th Cir. 2015).
Defendant produces sports-related news and
entertainment programming. Though best known for its
television channel, Defendant also offers access to video
content through an application called the “WatchESPN
Channel,” which is available on the Roku digital streaming
device. Roku allows users to view videos and other content
on their televisions by means of Internet streaming.
Plaintiff downloaded the WatchESPN Channel on his
Roku device and used it to watch sports-related news and
events. He did not consent to Defendant’s sharing his
information with a third party. But every time Plaintiff
watched a video, Defendant knowingly disclosed to a third
party, Adobe Analytics: (1) Plaintiff’s Roku device serial
number and (2) the identity of the video that he watched.
Adobe uses the information obtained from Defendant to
identify specific consumers by connecting that information
“with existing data already in Adobe’s profile of th[ose]
individual[s].”
Adobe obtains the additional
information—such as “email addresses, account information,
or Facebook profile information, including photos and
usernames”—from sources other than Defendant. Adobe
gives the resulting data back to Defendant in an aggregated

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form; Defendant in turn provides advertisers with aggregated
information about its users’ demographics.
In this action, Plaintiff alleges that Adobe used the
foregoing process to identify him as having watched specific
videos. He argues that Defendant disclosed his “personally
identifiable information” by giving Adobe his Roku device
serial number and identifying the videos that he watched,
because Defendant knew that Adobe could and would use that
information to identify him. The district court dismissed the
action on the ground that the information that Defendant
disclosed did not constitute “personally identifiable
information” within the meaning of the VPPA. Plaintiff
timely appeals.
STANDARD OF REVIEW
We review de novo the district court’s decision to grant
a motion to dismiss a claim under Rule 12(b)(6). Mollett,
795 F.3d at 1065. To survive a motion to dismiss, the claim
must be plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). We must uphold a district court’s decision to
dismiss either if a cognizable legal theory is absent or if the
facts alleged fail to suffice under a cognizable claim. Mollett,
795 F.3d at 1065.
DISCUSSION
A. Standing
Defendant first argues that Plaintiff lacks Article III
standing because he has not alleged a concrete harm as
required by Spokeo, Inc. v. Robins (Spokeo I), 136 S. Ct. 1540
(2016). We disagree.

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To have Article III standing, a plaintiff must have
suffered an injury in fact that is (1) concrete and
particularized, (2) traceable to the defendant, and
(3) redressable by judicial order. Lujan v. Defs. of Wildlife,
504 U.S. 555, 560–61 (1992). For an injury to be concrete,
it “must be ‘de facto’; that is, it must actually exist.” Spokeo
I, 136 S. Ct. at 1548. Nevertheless, an intangible harm may
qualify as an injury in fact. Id. at 1549. In determining
whether an intangible injury is sufficiently concrete, “both
history and the judgment of Congress play important roles.”
Id.
In Spokeo I, the Supreme Court addressed whether a
violation of procedural requirements imposed by the Fair
Credit Reporting Act (“FCRA”), alone, could constitute an
injury in fact sufficient to confer standing. Id. at 1549.
There, the plaintiff (Robins) claimed that Spokeo had violated
the FCRA by disseminating inaccurate information about
him. Id. at 1546. Initially, we held that the alleged violation,
by itself, sufficed to confer Article III standing. The Supreme
Court vacated our decision and remanded, explaining that
Article III “requires a concrete injury even in the context of
a statutory violation” and that a “bare procedural violation,
divorced from any concrete harm,” is not enough. Id. at
1549. On remand, we held that even though Robins alleged
procedural violations of the FCRA, he alleged a sufficient
risk of harm (for example, the loss of employment
opportunities) to obtain standing. Robins v. Spokeo, Inc.
(Spokeo II), 867 F.3d 1108, 1118 (9th Cir. 2017).
Importantly, Spokeo concerned procedural violations of
the FCRA that would not invariably injure a concrete interest.
Id. at 1114 (describing the FCRA provisions at issue as
“procedural requirements” (emphasis added)); id. at 1116

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(examining the plaintiff’s “procedural rights” (emphasis
added)). Indeed, the central provision at issue in Spokeo was
15 U.S.C. § 1681e(b), which falls under the FCRA’s
“Compliance procedures” section and requires consumer
reporting agencies to take “reasonable procedures to assure
maximum possible accuracy” of the information they report.
But a violation of that provision does not necessarily affect a
plaintiff’s concrete interests. See Spokeo I, 136 S. Ct. at 1550
(noting that “not all inaccuracies cause harm or present any
material risk of harm” and giving, as an example, the
dissemination of a consumer’s incorrect zip code). As a
consequence, the Spokeo plaintiff had to plead additional
harm to obtain standing. Id.
By contrast, 18 U.S.C. § 2710(b)(1), the VPPA provision
at issue here, codifies a context-specific extension of the
substantive right to privacy: “A video tape service provider
who knowingly discloses, to any person, personally
identifiable information concerning any consumer of such
provider shall be liable to the aggrieved person . . . .” That
provision does not describe a procedure that video service
providers must follow. Rather, it protects generally a
consumer’s substantive privacy interest in his or her videoviewing history. Mollett, 795 F.3d at 1065 (citing S. Rep.
No. 100-599, at 1 (1988), reprinted in 1988 U.S.C.C.A.N.
4342). Accordingly, every disclosure of an individual’s
“personally identifiable information” and video-viewing
history offends the interests that the statute protects.
Congressional judgment leaves little doubt that 18 U.S.C.
§ 2710(b)(1) is a substantive provision that protects concrete
interests. Congress enacted the VPPA “to extend privacy
protection to records that contain information about
individuals.” S. Rep. No. 100-599, at 2. To that end, the

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VPPA permits consumers to obtain damages for a violation
of § 2710(b)(1) without showing consequential harm.
18 U.S.C. § 2710(c)(2).1 The VPPA does not protect only
against harms such as embarrassment and harassment—as
Defendant argues. Rather, the statute also protects privacy
interests more generally by ensuring that consumers retain
control over their personal information. See S. Rep. No. 100599, at 6–7 (explaining that the VPPA protects against
intrusion in an age when consumers “provide to businesses
. . . personal information without having any control over
where that information goes”).
Historical practice confirms that understanding.
Violations of the right to privacy have long been actionable
at common law. See Braitberg v. Charter Commc’ns, Inc.,
836 F.3d 925, 930 (8th Cir. 2016) (stating that “there is a
common law tradition of lawsuits for invasion of privacy”).
Indeed, the Supreme Court has noted that “both the common
law and the literal understanding of privacy encompass the
individual’s control of information concerning his or her
person.” U.S. Dep’t of Justice v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 763 (1989). Tellingly,
privacy torts do not always require additional consequences
to be actionable. See, e.g., Restatement (Second) of Torts
§ 652B cmt. b. (Am. Law Inst. 1977) (recognizing the tort of

1

In Defendant’s view, the word “aggrieved” suggests that the statute
requires a showing of additional harm and that, without such a showing,
a consumer does not have standing. We disagree. The Supreme Court has
explained that the term “aggrieved” demonstrates an “intent to cast the
standing net broadly.” Fed. Election Comm’n v. Akins, 524 U.S. 11, 19
(1998) (addressing the term in the context of prudential standing).
Regardless, congressional history clearly shows that Congress thought that
every unauthorized disclosure “aggrieves” a consumer. Mollett, 795 F.3d
at 1065.

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intrusion upon seclusion, for which the “intrusion itself”
makes the defendant liable). The VPPA functions in the
same way.
Thus, although the FCRA outlines procedural obligations
that sometimes protect individual interests, the VPPA
identifies a substantive right to privacy that suffers any time
a video service provider discloses otherwise private
information. As a result, every 18 U.S.C. § 2710(b)(1)
violation “present[s] the precise harm and infringe[s] the
same privacy interests Congress sought to protect” by
enacting the VPPA. Van Patten v. Vertical Fitness Grp.,
LLC, 847 F.3d 1037, 1043 (9th Cir. 2017) (so holding with
respect to the Telephone Consumer Protection Act of 1991).
Accordingly, Spokeo I and Spokeo II are distinguishable from
this VPPA claim, and Plaintiff need not allege any further
harm to have standing. Id.2 We therefore join the two other
circuits that, after Spokeo I, have found Article III standing in
similar cases arising under the VPPA. Perry v. Cable News
Network, Inc., 854 F.3d 1336, 1341 (11th Cir. 2017); In re
Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 274 (3d
Cir. 2016), cert. denied, 137 S. Ct. 624 (2017).

2

The VPPA’s history shows why an allegation of additional harm is
unnecessary. Congress enacted the VPPA after a newspaper published
Supreme Court nominee Robert Bork’s video rental history. Notably,
Judge Bork’s rental history was decidedly commonplace, and the article
did not hurt his nomination.
Case Comment, Statutory
Interpretation—The Video Privacy Protection Act—Eleventh Circuit
Limits the Scope of “Subscriber” for VPPA Protections.—Ellis v. Cartoon
Network, Inc., 803 F.3d 1251 (11th Cir. 2015), 129 Harv. L. Rev. 2011,
2018–19 (2016). Were we to accept Defendant’s argument regarding
standing, the VPPA would not provide legal recourse to those in the
precise situation that prompted the statute’s enactment in the first place.

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B. “Personally Identifiable Information”
The district court dismissed Plaintiff’s claim on the
ground that the allegedly disclosed information did not
constitute “personally identifiable information” within the
meaning of the VPPA. The VPPA defines “personally
identifiable information” to “include[] information which
identifies a person as having requested or obtained specific
video materials or services from a video tape service
provider.” 18 U.S.C. § 2710(a)(3). We agree with the district
court’s conclusion.
As an initial matter, “personally identifiable information”
must include more information than that which, by itself,
identifies an individual as having watched certain videos.
Instead, “personally identifiable information” covers some
information that can be used to identify an individual.
Two reasons support that conclusion, and both flow
directly from the VPPA’s text. First, § 2710(a)(3) uses the
open-ended word “includes,” which suggests that the
proffered definition describes only one example of
“personally identifiable information.” Read in context, the
word “includes” seems particularly deliberate here. Compare
18 U.S.C. § 2710(a)(3) (using the word “includes”) with
18 U.S.C. § 2710(a)(1), (a)(2) & (a)(4) (using the word
“means” to define other statutory terms). Second, Congress
used the word “identifiable.” 18 U.S.C. § 2710(a)(3)
(emphasis added). And the suffix “able” means “capable of.”
Webster’s Third New Int’l Dictionary 4, 1123 (unabr. ed.
1981). It follows, then, that the term “personally identifiable
information” covers some information that is “capable of”
identifying a person, as well as information that, standing
alone, identifies a person.

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The question remains, though: Under the VPPA, what
information did Congress intend to cover as “capable of”
identifying an individual? Two circuits have considered that
question in similar cases, and each has articulated a different
standard. Yershov v. Gannett Satellite Info. Network, Inc.,
820 F.3d 482, 486 (1st Cir. 2016); In re Nickelodeon
Consumer Privacy Litig., 827 F.3d 262, 284 (3d Cir. 2016).
In Yershov, the First Circuit held that the term “personally
identifiable information” encompasses “information
reasonably and foreseeably likely to reveal which . . . videos
[a person] has obtained.” 820 F.3d at 486 (emphasis added).
The court concluded that an iPhone user’s GPS coordinates
and device identifier fell within that definition. Id. In a
similar case, though, the Third Circuit held that a unique IP
address did not qualify as “personally identifiable
information,” because the term includes only information that
“readily permit[s] an ordinary person to identify a [particular
individual as having watched certain videos].” In re
Nickelodeon, 827 F.3d at 290 (emphasis added). We adopt
the Third Circuit’s “ordinary person” standard.
The “ordinary person” test better informs video service
providers of their obligations under the VPPA. The VPPA
protects consumer privacy by directing video service
providers not to do certain things with consumer information.
To that end, 18 U.S.C. § 2710(b)(1) focuses on what
information a video service provider “knowingly discloses.”
In other words, the statute views disclosure from the
perspective of the disclosing party. It looks to what
information a video service provider discloses, not to what
the recipient of that information decides to do with it. As a
result, “personally identifiable information” must have the
same meaning without regard to its recipient’s capabilities.

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Holding otherwise would make “[t]he lawfulness of [a]
disclosure . . . depend on circumstances outside of [a video
service provider’s] control.” Mollett, 795 F.3d at 1066. The
Third Circuit’s “ordinary person” test, by contrast, provides
video service providers with enough guidance to comply with
the VPPA’s requirements.
The interpretation that we adopt fits most neatly with the
regime that the VPPA’s enacting Congress likely had in
mind. In 1988, the Internet had not yet transformed the way
that individuals and companies use consumer data—at least
not to the extent that it has today. Then, the VPPA’s
instructions were clear. The manager of a video rental store
in Los Angeles understood that if he or she disclosed the
name and address of a customer—along with a list of the
videos that the customer had viewed—the recipient of that
information could identify the customer. By contrast, it was
clear that, if the disclosure were that “a local high school
teacher” had rented a particular movie, the manager would
not have violated the statute. That was so even if one
recipient of the information happened to be a resourceful
private investigator who could, with great effort, figure out
which of the hundreds of teachers had rented the video.
Plaintiff’s Roku device serial number is like the information
in the latter scenario. It creates a sizable “pool” of possible
viewers—here, Roku users—just as the information in the
latter example does—there, high school teachers.
It is true that today’s technology may allow Adobe to
identify an individual from the large pool by using other
information—as Plaintiff alleges. But the advent of the
Internet did not change the disclosing-party focus of the
statute. And we are not persuaded that the 1988 Congress
intended for the VPPA to cover circumstances so different

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from the ones that motivated its passage. Therefore, drawing
on the Third Circuit’s reasoning, we hold that “personally
identifiable information” means only that information that
would “readily permit an ordinary person to identify a
specific individual’s video-watching behavior.” In re
Nickelodeon, 827 F.3d at 267.
Applying that definition here, the operative complaint is
deficient. Plaintiff alleges that Defendant disclosed to
Adobe: (1) his Roku device serial number and (2) the names
of the videos that he watched. As Plaintiff concedes, that
information cannot identify an individual unless it is
combined with other data in Adobe’s possession—data that
ESPN never disclosed and apparently never even possessed.
Indeed, according to Plaintiff, Adobe can identify individuals
only because it uses a complex “Visitor Stitching technique”
to link an individual’s Roku device number with other
identifying information derived from “an enormous amount
of information” collected “from a variety of sources.” We
conclude that an ordinary person could not use the
information that Defendant allegedly disclosed to identify an
individual. Plaintiff has therefore failed to state a claim under
Rule 12(b)(6).
Our decision today, though it adopts a different test, does
not necessarily conflict with Yershov. The First Circuit’s
holding in that case was quite narrow. The court held
only that the transaction described in the
complaint—whereby Yershov used the mobile
device application that Gannett provided to
him, which gave Gannett the GPS location of
Yershov’s mobile device at the time he
viewed a video, his device identifier, and the

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titles of the videos he viewed in return for
access to Gannett’s video content—plausibly
plead[ed] a case that the VPPA’s prohibition
on disclosure applies.

Yershov, 820 F.3d at 489. The First Circuit relied, in part, on
the nature of GPS location data, which the court noted
“would enable most people to identify [an individual’s home
and work addresses].” Id. at 486 (emphasis added). And the
court expressly noted that, at some point, “the linkage of
information to identity becomes too uncertain” to trigger
liability under the VPPA. Id. That is precisely the situation
here.
Nor does our holding make the statute powerless. Names
and addresses, of course, still qualify. See 18 U.S.C.
§ 2710(b)(2)(D) (permitting video service providers to
“disclose personally identifiable information . . . if [among
other conditions] the disclosure is solely of the names and
addresses of consumers” (emphasis added)). It is not difficult
to imagine other examples that may also count—for example,
an individual’s name and telephone number or an individual’s
name and birthday or, as in Yershov, the GPS coordinates of
a particular device. And modern technology may indeed
alter—or may already have altered—what qualifies under the
statute. A Facebook link or an email address may very well
readily enable an “ordinary person” to identify an individual.
We need not and do not opine on the merits of those theories.
The allegations before us, though, are simply too attenuated
to qualify under the standard that we adopt today.3

3

In view of our holding, we need not reach any other issue. We
therefore do not decide, for example, whether Plaintiff has adequately
alleged his status as a “consumer” under the VPPA.

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CONCLUSION
Plaintiff has Article III standing to bring his claim
because 18 U.S.C. § 2710(b)(1) is a substantive provision
protecting consumers’ concrete interest in their privacy. We
affirm the judgment of dismissal because the information
described in Plaintiff’s complaint does not constitute
“personally identifiable information” under the VPPA.
AFFIRMED.