Garvey et al v. Kissmetrics et al

Filing 298

ORDER by Judge Laurel Beeler granting 230 Motion for Summary Judgment (lblc1S, COURT STAFF) (Filed on 3/31/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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IN RE: HULU PRIVACY LITIGATION

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Case No. 11-cv-03764-LB

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ORDER GRANTING SUMMARY
JUDGMENT

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[Re: ECF No. 230]

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INTRODUCTION

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The plaintiffs are viewers of online video content through Hulu, LLC‘s Internet-based service.

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They allege that Hulu wrongfully disclosed their video viewing selections and personal-

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identification information to a third party: specifically, the social-networking website, Facebook.

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The plaintiffs claim that Hulu thereby violated the Video Privacy Protection Act of 1988

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(―VPPA‖), 18 U.S.C. § 2710. (See generally 2d Am. Compl. – ECF No. 83.)1 The VPPA prohibits

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a ―video tape service provider‖ from ―knowingly‖ disclosing a user‘s ―personally identifiable

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information‖ to third parties (with certain exceptions that do not apply here). See 18 U.S.C.

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§ 2710. ―The term ‗personally identifiable information‘ includes information that identifies a

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person as having requested or obtained specific video materials or services from a video tape

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Record citations are to material in the Electronic Case File (―ECF‖); pinpoint citations are to the
ECF-generated page numbers at the tops of the documents.
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service provider.‖ 18 U.S.C. § 2710(a)(3).

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Hulu has moved for summary judgment. (ECF No. 230.) It argues, in sum, that it did not

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―knowingly‖ send Facebook information that could identify Hulu users, and it did not know that

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Facebook might read the information that Hulu sent so as to yield ―personally identifiable

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information‖ under the VPPA.

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For the reasons elaborated below, the court grants Hulu‘s motion for summary judgment. In

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particular, the court finds dispositive the absence of any issue of material fact that Hulu actually

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knew that Facebook might combine information that identified Hulu users with separate

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information specifying which video that user was watching, so as to ―identif[y] a person as having
requested or obtained specific video materials.‖ The court therefore dismisses the Second

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Amended Complaint (ECF No. 83) with prejudice.
STATEMENT

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The basic facts about the parties, and how Hulu‘s and Facebook‘s services and software work

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and interact, are undisputed. The parties‘ disagreement concerns what Hulu knew, or did not

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know, about information that passed between Hulu and Facebook.

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I. THE PARTIES
Hulu provides on-demand, online access to television shows, movies, and other pre-recorded

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video content from networks and studios through its website, www.hulu.com. (See generally 2d

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Am. Compl. – ECF No. 83, ¶¶ 1, 17.) It offers a free service at hulu.com that allows users to watch

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video content on their computers. (See ECF No. 178 – Joint Statement of Undisputed Facts

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(―JSUF‖) #1.)2 It also offers a paid service called ―Hulu Plus‖ that has more content and allows

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viewers to watch Hulu content on other devices such as tablets and smart phones. (Yang Decl. –

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ECF No. 125-6, ¶¶ 2, 6.) Plaintiffs Joseph Garvey, Sandra Peralta, Paul Torre, Joshua Wymyczak,

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and Evan Zampella each are all registered Hulu users. (See 2d Am. Compl. ¶¶ 1-6.)

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This JSUF was submitted to support Hulu‘s previous summary-judgment motion (ECF No. 130).
The court uses it here to discuss descriptive background facts that apply equally to the present
motion.
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II. HOW HULU WORKS

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Hulu pays license fees to studios, networks, and other rights holders to obtain the video

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content that it offers to its users. (See Yang Decl. – (Yang Decl. – ECF No. 125-6, ¶ 10.) Hulu

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allows users to register for a free Hulu account. (See JSUF #1.) A Hulu user does not need to

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register for a Hulu account to watch videos on hulu.com using a personal computer. (See id. ¶ 4.)

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To register for a Hulu account, the user enters a first and last name, birth date, gender, and an

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email address. (JSUF #1.) Users are not required to provide their legal first and last name during

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registration. (JSUF #2.) In fact, Plaintiff Joseph Garvey registered for his Hulu account in a name

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other than his legal name. (See JSUF #3.) Hulu does not verify the accuracy of the identifying
information but stores it in a secure location. (Yang Decl. – ECF No. 125-6, ¶ 6.) To register for

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Hulu Plus, the user must provide the same information as a registered Hulu user, along with

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payment information and a billing address. (Id., ¶ 7.) Hulu assigned each new registered Hulu user

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a ―User ID,‖ which is a unique numerical identifier (e.g., 50253776). (JSUF #6; see Tom Dep. –

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ECF No. 157-11 at 37:9-38:12.)

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Videos on hulu.com are displayed on a video player that appears on a webpage. Hulu calls

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these webpages ―watch pages.‖ (See Yang Decl. – ECF No. 125-6, ¶ 3; JSUF #24.) Hulu wrote

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and deployed the code for its watch pages. (Tom Dep. – ECF No. 157-11 at 108:23-109:8, 175:9-

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16; Wu Dep. – ECF No. 157-6 at 80-84.) The code downloaded to registered Hulu users‘ browsers

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when they visited a watch page so that the browser could display the requested web page or video

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content. (Tom Dep. – ECF No. 157-11 at 112:19-113:5.) As described in more detail below, the

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code also allowed information to be transmitted to Facebook. Until June 7, 2012, the URL

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(uniform resource locator, meaning, the web address) of Hulu‘s watch pages included the name of

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the video on that page. For example, a watch-page URL might look like this:

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http://www.hulu.com/watch/426520/saturday-night-live-the-californians-thanksgiving
The number 426520 in this URL is the video ID. (JSUF #24.)
In March 2009, Hulu began providing each registered user with a profile web page. (JSUF #9.)

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The first and last name the user provided during registration appears on the page and in the page

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title. (JSUF #10.) Hulu did not allow registered users to decline to share their first and last names
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on their public profile pages. Until August 1, 2011, a user‘s profile-page URL included the user‘s

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unencrypted Hulu User ID. (JSUF #12.) An example is:

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http://www.hulu.com/profiles/u/[User ID]

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where ―[User ID]‖ is the Hulu User ID. Id. After August 1, 2011, the Hulu User ID was encrypted.

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(JSUF #13.) An example is:

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http://www.hulu.com/profiles/u/wxu2RqZLhrBtVjYKEC_R4

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(Id.) Hulu did not provide a separate search function (for example, through a search box) to allow

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a user to use a Hulu User ID to find the profile page of another user. (JSUF #11.) On May 30,

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2013, Hulu discontinued the user profile pages. (JSUF #14.)
Hulu makes money from advertising revenue and from monthly premiums paid by Hulu Plus

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members. (Yang Decl. – ECF No. 125-6, ¶ 11.) Its main source of income is advertising revenue.

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(Id.) Advertisers pay Hulu to run commercials at periodic breaks during video playback. (Id. ¶ 12.)

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Advertisers pay Hulu based on how many times an ad is viewed. (Id. ¶ 13.) Hulu must thus gather

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information about its ―audience size.‖ (Id.)

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III.

HOW HULU INTERACTS WITH FACEBOOK

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Facebook collects information and processes content ―shared by its users,‖ and it provides that

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information to marketers (See generally ECF No. 157-12 at 4, 6-9.) Facebook shares its members‘

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information with marketers so that they can target their ad campaigns. (See id.) Marketers can

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―specify the types of users they want to reach based on information that users choose to share.‖

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(Id.) Advertisement revenue is how Facebook makes money. (See id.)

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In April 2010, Facebook launched its ―Like‖ button; that August, Hulu added a Facebook Like

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button to each hulu.com watch page. (JSUF #18-19.) Certain information was transmitted from

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hulu.com to Facebook via the ―Like‖ button. (JSUF #18.) Hulu wrote code for its watch pages that

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specified where the ―Like‖ button should be located on the page and where (from facebook.com)

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to obtain the code that loads and operates the button. (JSUF #20.) When the user‘s browser

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executed this code, the browser sent the request to Facebook to load the Like button on the watch

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page. (JSUF #21.) Hulu sent Facebook the watch page‘s address, so that Facebook knew where to

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send code for the Like button so that it could be downloaded, displayed on the watch page, and
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used. (See Wu Decl. – ECF No. 230-5, ¶¶ 16-20, 25.) From April 2010 to June 7, 2012, the

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address for each watch page included the title of the video displayed on that watch page. (See

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JSUF #18.) An example is the address containing the Saturday Night Live episode that was

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mentioned in the preceding section.

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If the Hulu user had logged into Facebook using certain settings within the previous four

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weeks, the Like button would cause a ―c_user‖ cookie3 to be sent to Facebook; c_user contains

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(among other things) the logged-in user‘s Facebook user ID expressed in a numeric format. (JSUF

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#22; Calandrino Decl. – ECF No. 280-7, ¶ 71.) An example is ―c_user=55431124‖; Facebook can

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identify this number as a particular Facebook user. (Richard Decl. – ECF No. 287-3, ¶ 40.) Hulu
did not send Facebook the Hulu User ID or the Hulu user‘s name when the user‘s browser

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executed the code to load the Like button. (JSUF #23.)

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There is no evidence that Facebook took any action with the c_user cookie. (See, e.g., JSUF

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#25.) That said, from April 2010 until June 7, 2012, when the Like button loaded, it would prompt

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the user‘s browser to send Facebook both the user‘s numeric Facebook ID (from the c_user

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cookie) and the title of the video that the user was watching (contained in the Hulu watch-page

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address). (Id., ## 20-22, 24.) The plaintiffs‘ expert opines that this transmission enabled Facebook

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to link information identifying the user and the user‘s video choices to other information about the

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particular user. (See Calandrino Decl. – ECF No. 280-7, ¶¶ 57-81.) Again, when a Hulu watch

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page loaded with the Facebook Like button, the page prompted a user‘s web browser to transmit

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A ―cookie‖ is a file on a user‘s computer. (Wu Decl. – ECF No. 230-5, ¶ 13.) Cookies contain
information that identifies the domain name of the webserver that wrote the cookie (e.g., hulu.com
or facebook.com). (Id. ¶ 18.) Cookies have information about the user‘s interaction with a website.
(Id.) Examples include how the website should be displayed, how many times a user has visited
the website, what pages he visited, and authentication information. (Id. ¶ 13.) Each web browser
on a computer (e.g., Internet Explorer or Chrome) stores the cookies that are created during a
user‘s use of the browser in a folder on the user‘s computer that is unique to that browser. (Id.
¶ 14.) When a user types a website address into her browser, the browser sends: (a) a request to
load the page to the webserver for that website address; and (b) any cookies on the user‘s
computer that are associated with the website (such as the cookies for hulu.com or facebook.com).
(Id. ¶ 15.) The remote website server returns the requested page and can update the cookies or
write new ones. (Id.) The only servers that can access a particular cookie are those associated with
the domain that wrote the cookie. (Id. ¶¶ 18, 21.) In other words, Hulu can read only hulu.com
cookies, while Facebook can read only facebook.com cookies; the companies cannot read or write
to cookies associated with the other service. (Id.)
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the watch-page address and Facebook c_user cookie to Facebook-controlled servers. (Id. ¶ 58.)

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This happened with the initial Hulu-prompted request from the user‘s browser to Facebook before

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the browser received any information from Facebook. (Id. ¶ 59.) The two items most salient for

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this lawsuit, then — the c_user cookie and the watch-page URL — were sent to Facebook before

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the Hulu user did anything other than load the Hulu watch page.
GOVERNING LAW

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I. SUMMARY JUDGMENT
The court must grant a motion for summary judgment if the movant shows that there is no

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genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of

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law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material

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facts are those that may affect the outcome of the case. Anderson, 477 U.S. at 248. A dispute about

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a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for

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the non-moving party. Id. at 248-49.

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The party moving for summary judgment has the initial burden of informing the court of the

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basis for the motion and identifying those portions of the pleadings, depositions, answers to

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interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material

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fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, ―the moving party

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must either produce evidence negating an essential element of the nonmoving party‘s claim or

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defense or show that the nonmoving party does not have enough evidence of an essential element

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to carry its ultimate burden of persuasion at trial.‖ Nissan Fire & Marine Ins. Co. v. Fritz Cos.,

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210 F.3d 1099, 1102 (9th Cir. 2000); see Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.

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2001) (―When the nonmoving party has the burden of proof at trial, the moving party need only

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point out ‗that there is an absence of evidence to support the nonmoving party‘s case.‘‖) (quoting

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Celotex, 477 U.S. at 325).

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If the moving party meets its initial burden, the burden shifts to the non-moving party, which

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must go beyond the pleadings and submit admissible evidence supporting its claims or defenses

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and showing a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Nissan

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Fire, 210 F.3d at 1103; Devereaux, 263 F.3d at 1076. If the non-moving party does not produce
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evidence showing a genuine issue of material fact, the movant is entitled to summary judgment.

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See Celotex, 477 U.S. at 323.

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In ruling on a motion for summary judgment, inferences drawn from the underlying facts are

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viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 587 (1986).

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II. THE VIDEO PRIVACY PROTECTION ACT

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The VPPA in relevant part states: ―A video tape service provider who knowingly discloses, to
any person, personally identifiable information concerning any consumer of such provider shall be

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liable to the aggrieved person . . . .‖ 18 U.S.C. § 2710(b)(1) (emphasis added). The court has

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already determined that Hulu is a ―video tape service provider,‖ and that the plaintiffs were

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―consumers,‖ within the VPPA‘s meaning. (ECF No. 68 at 7-9, 11-12.) ―Personally identifiable

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information‖ (PII) under this statute ―includes information which identifies a person as having

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requested or obtained specific video materials or services from a video tape service provider . . . .‖

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18 U.S.C. § 2710(a)(3).

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This basic VPPA standard requires two elaborative points. First, the term ―knowingly‖

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connotes actual knowledge. It is not enough, as the plaintiffs suggest, that a disclosure be merely

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―voluntary‖ in the minimal sense of the defendant‘s being ―aware of what he or she is doing and . .

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. not act[ing] because of some mistake or accident.‖ (See ECF No. 279 at 17-20.) The court has

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already decided that ―‗knowingly‘ means consciousness of transmitting the private information. It

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does not merely mean transmitting the code.‖ (ECF No. 194 at 23.) This is consistent with cases

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that have explained the knowledge requirement under the Electronic Communications Privacy Act

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of 1986, on which the VPPA was modeled. See Freedman v. Am. Online, Inc., 329 F. Supp. 2d

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745 (E.D. Va. 2004); Worix v. MedAssets, Inc., 857 F. Supp. 2d 699 (N.D. Ill. 2012); see also

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Mollett v. Netflix, Inc., 2012 WL 3731542 (N.D. Cal. Aug. 17, 2012) (defendant did not

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knowingly violate VPPA by streaming video-watching history to devices that bystanders might

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view).

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The second point is to notice that, apart from its knowledge requirement, the VPPA has three

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factual components. For there to be an actionable VPPA violation, the video provider must have
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knowingly disclosed: 1) a consumer‘s identity; 2) the identity of ―specific video materials‖; and 3)

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the fact that the person identified ―requested or obtained‖ that material. See 18 U.S.C.

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§ 2710(a)(3). There are, in other words, three distinct elements here: the consumer‘s identity; the

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video material‘s identity; and the connection between them. The point of the VPPA, after all, is

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not so much to ban the disclosure of user or video data; it is to ban the disclosure of information

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connecting a certain user to certain videos. Or, in the statute‘s exact terms, what is barred is

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disclosing information that ―identifies a person as having requested or obtained specific video

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materials.‖ 18 U.S.C. § 2710(a)(3) (emphasis added). This may seem obvious. It is nonetheless

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worth drawing out, to show exactly how the videotape-era VPPA applies to the Internet service

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involved here — and to clearly establish what a triable VPPA claim must include in a situation

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like this.

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The nature of the third element — the connection — distances this Internet-streaming case

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from the situations for which the VPPA was enacted. The paradigmatic case, the case that

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prompted the VPPA, involved a video store‘s giving a Washington Post reporter a list of the

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videos that Circuit Judge Robert Bork had rented. (See ECF No. 194 at 12-13 (discussing Judge

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Bork case).) In that type of case, the connection between a specific user and the material that he

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―requested or obtained‖ is obvious. If I hand someone a slip of paper with John Doe‘s name above

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a list of recently rented videotapes, the connection between the two will generally be apparent.

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This is all the more so because the information is passed between humans in a natural language.

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The recipient can immediately read the note and see the connection. There is an immediate

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disclosure of PII.

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This case is different. The user‘s identity and that of the video material were transmitted

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separately (albeit simultaneously). By sending those two items Hulu did not thereby connect them

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in a manner akin to connecting Judge Bork to his video-rental history; that is, Hulu did not

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disclose information that ―identifie[d] a person as having requested or obtained specific video

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materials.‖ Unlike in the paradigmatic Judge Bork case, the connection here would be established,

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if at all, by an act of the recipient. This means that, even if both elements were sent to Facebook,

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they did not necessarily disclose a user ―as having requested or obtained specific video materials‖
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unless Facebook combined the two pieces of information. Without Facebook forging that

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connection there is no ―disclosure‖ of ―personally identifiable information‖ under the terms of the

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VPPA.

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That a connection is needed for a PII disclosure becomes clearer when we notice that the
connection can break down even in the paradigmatic older case. Let us say that a video-store clerk

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gives a local reporter a slip of paper showing only someone‘s name. Weeks later, someone else

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hands the reporter a list of video titles. There is no obvious connection between the two. In the

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VPPA‘s terms, no one has tied a person to specific videos. There is consequently no actionable

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disclosure of PII. Unless, that is, additional evidence reestablishes the link between name and

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titles. If extrinsic proof shows that the reporter and video provider had agreed to separate the

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disclosures in place and time, so that the clerk would hand over only the renter‘s name, while the

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video titles would arrive later by a third-party courier — but that both parties understood how the

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name and titles were related — that would supply the connection. The connection in any case must

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exist. It is a necessary element of the VPPA — maybe somewhat implicit, as the statute is written,

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but still indispensable.

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Consider too the role of natural language. No one would deny that I would violate the VPPA

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by passing someone an encrypted list of Judge Bork‘s video rentals — if my recipient and I both

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understood that we would use a mutually intelligible code. If, instead, I hand someone only a

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garbled collection of alphanumeric strings (which I alone understand to contain someone‘s

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encrypted video-rental history), there is likely no actionable disclosure. For a disclosure to arise in

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the latter scenario, there generally must be proof of further action by the recipient; they must know

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that I have used a code and they must at least have the capacity to decode and read the contents. At

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the very least, there must be some mutual understanding that there has been a disclosure. Moving

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away from natural language, in other words — as we do in this case — requires the recipient to

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more actively participate to yield a VPPA-actionable ―disclosure.‖

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The upshot of all this describes the VPPA plaintiff‘s burden in an Internet-video case like this

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one. To state an actionable claim under the VPPA, a plaintiff must prove that the video-service

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provider actually knew that it was disclosing: 1) a user‘s identity; 2) the identity of the video
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material; and 3) the connection between the two — i.e., that the given user had ―requested or

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obtained‖ the given video material. In terms of this case, if Hulu did not actually know that

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Facebook might ―read‖ the c_user cookie and video title together (yielding something akin to the

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list of Judge Bork‘s videos), then there cannot be a VPPA violation. This is the conclusion that the

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court earlier reached. (See ECF No. 194 at 23-24.)

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ANALYSIS

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The dispositive point in this case lies in the connection between a user‘s identity, sent in the

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c_user cookie, and the title of the videos that that user watched, contained in the watch-page

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address. Or, rather, the dispositive point lies in the lack of a known connection between those
things. More precisely, there is no evidence that Hulu knew that Facebook might combine a

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Facebook user‘s identity (contained in the c_user cookie) with the watch-page address to yield

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―personally identifiable information‖ under the VPPA. There is consequently no proof that Hulu

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knowingly disclosed any user ―as having requested or obtained specific video materials or

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services.‖ See 18 U.S.C. § 2710(a)(3).

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The Governing Law section, above, explains why the VPPA requires proof that three things

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were disclosed: a consumer‘s identity; the identity of ―specific video materials‖; and a connection

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between the two — that is, that the consumer ―requested or obtained‖ those videos. Before

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reviewing the evidence and the parties‘ arguments, it may be worth stating that three-part

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requirement even more concretely in the terms of this particular case. Hulu‘s motion for summary

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judgment does this well, and the court borrows Hulu‘s explanation:

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Neither the watch page URL nor the Facebook c_user cookie by
itself constitutes PII as defined by the VPPA. Hulu‘s watch page
URL contains no user data at all, let alone identifying information;
the URL is the same for every user who requests that same video.
(See Wu Decl. ¶¶ 27-30.) And the Facebook c_user cookie does not
contain any video watch information. Thus, even if Hulu knew that
the c_user cookie transmitted the Facebook User ID to Facebook . . .
Hulu could not have ―knowingly‖ disclosed PII to Facebook unless
it knew that Facebook was combining the Facebook User ID with
the video title embedded in Hulu‘s watch page URL.

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(ECF 230 at 9-10.) Because there is no evidence of the last element, there is no genuine issue of

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material fact on that element, and the court grants summary judgment in Hulu‘s favor.

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I. THE PLAINTIFFS OFFER NO PROOF ON THE CONNECTION ELEMENT

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The plaintiffs do not establish a genuine issue of material fact showing either that Facebook

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combined the c_user and watch-page information to yield PII, or (more important) that Hulu knew

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that Facebook might combine those discrete things to reconstruct PII. The plaintiffs indeed

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identify no proof in this regard. They instead argue that they do not have to prove this. (ECF No.

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279 at 19-21.) They write: ―Plaintiffs need only demonstrate that Hulu voluntarily provided user-

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specific information and videos watched to a third party; there is no requirement that Plaintiffs

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allege — much less prove that Hulu knew — what that third party might do with that

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information.‖ (Id. at 19.)

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The plaintiffs first argue that the court has already ―expressly rejected‖ the idea that Hulu must

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have known that Facebook would combine the user- and video-identifying data. (Id. at 20.) Their

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underlying point seems to be that transmitting both components to Facebook was itself enough.

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They write: ―this Court has previously held that . . . the data transmitted to Facebook was not ‗two

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separate pieces of data.‘‖ (Id. at 20 (citing ECF No. 194 at 22).) They then quote the court‘s

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statement that, ―if a video store knowingly hands a list of Judge Bork‘s rented videos to a

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Washington Post reporter, it arguably violates the VPPA even if the reporter does not look at the

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list.‖ (ECF No. 279 at 20 (quoting ECF No. 194 at 23).)

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The plaintiffs are mistaken in two ways. First, the plaintiffs misunderstand the court‘s point

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when it suggested that, ―[i]n contrast to comScore‖ — another vendor previously relevant in this

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case — ―where the user was not tied to the video in one transmission, the transmission to

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Facebook included the video name and Facebook user cookies.‖ (See ECF No. 194 at 22.) The

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court did not ―reject‖ the idea that a connection between user and video identification is a

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necessary element under the VPPA, or assert that ―the data [that Hulu] transmitted to Facebook

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was not ‗two separate pieces of data.‘‖ (Strictly speaking, the court‘s order did not use the term

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―two separate pieces of data‖; the source of that quotation is unclear.) In reasoning through the

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parties‘ arguments, and the available facts, the court meant only to contrast the data that had been

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supplied to comScore with that supplied to Facebook. Unlike the transmission to comScore, the

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court wrote, the ―transmission to Facebook included the video name and Facebook user cookies,‖
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so that in the Facebook situation ―the link between user and video was more obvious.‖ (ECF No.

2

194 at 22.) The court did not say that that link had been conclusively established. To the contrary,

3

the court immediately observed that whether the link between the two was ―disclosed‖ under the

4

VPPA ―depends on the facts,‖ facts that the court said had not yet developed because discovery

5

was still open. (Id. at 22, 26.) The court also noted Hulu‘s countervailing point: ―that the

6

information really was not disclosed to Facebook in the sense that the information about Judge

7

Bork‘s video viewing was disclosed to the Washington Post.‖ (Id.) More simply, the evidence has

8

always shown and the court has always understood that, although both were sent to Facebook, the

9

c_user cookie and the watch-page address are distinct things. (See, e.g., id.) Whether the
transmission is actionable depends on whether the ―connection‖ of the two creates the ―disclosure‖

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10

of PII that VPPA requires.

12

Second, even in the ―arguably‖ actionable, hypothetical case in which the Washington Post

13

reporter ―does not look‖ at the list of Judge Bork‘s rentals (id. at 23), the posited list contains all

14

three VPPA elements: the user‘s identity; the identity of the videos; and the connection between

15

them (that is, the fact that the consumer has ―requested or obtained‖ the listed videos). The court

16

did not ―expressly reject‖ a connection requirement under the VPPA.

17

This ties in to the plaintiffs‘ next point. The plaintiffs write: ―Hulu‘s argument‖ — i.e., that the

18

plaintiffs must prove that Hulu knew that Facebook might combine the c_user and watch-page

19

data — ―is nearly identical to the argument rejected in‖ Senne v. Village of Palantine, Ill., 695

20

F.3d 597 (7th Cir. 2012) (en banc). In Senne, the Seventh Circuit held that placing ―personal

21

information‖ on parking tickets that were then placed on windshields, and were thus in public

22

view, was a disclosure violating the Driver‘s Privacy Protection Act, regardless of whether anyone

23

actually viewed the ticket. But nothing in Senne indicates that, in a VPPA case like this one, a

24

plaintiff need not prove that the consumer‘s identity was linked to ―specific‖ videos as those that

25

she ―requested or obtained.‖ Again, as the court wrote in its earlier order, ―disclosure[s] of

26

information on traffic tickets in public view,‖ like the one in Senne, ―transmit obvious PII.‖ (ECF

27

No. 194 at 23.) Like the list of Judge Bork‘s videos, but unlike the ultimately separate c_user and

28

watch-page data here, the connection between the plaintiff driver and his ―personal information‖
ORDER – 11-3764 LB

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1

was immediately apparent in Senne: both were written together on one parking ticket. See Senne,

2

695 F.3d at 599.
The plaintiffs do not go beyond their legal arguments on this point to offer proof that Hulu

4

knew that Facebook might combine the c_user and watch-page data to construct information that

5

would identify a user ―as having requested or obtained specific video materials or services.‖

6

Without that proof, there is no knowing disclosure of PII. For its part, Hulu has offered affirmative

7

proof that it did not know what, if anything, Facebook would do with the user-identifying

8

information in the c_user cookie, on the one hand, and, on the other, the video title that could be

9

gleaned from watch-page addresses. (Tom Dep. – ECF No. 230-7 at 130-31, 283, 285-86; Wu

10

Dep. – ECF No. 280-8 at 96.)4 For this reason alone, the plaintiffs do not have a triable claim

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United States District Court
Northern District of California

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under the VPPA.

12

II.

FACTS CONCERNING HULU’S TRANSMISSION OF USER IDENTITIES
The plaintiffs cite various facts to show, more basically, that Hulu knew that it was sending

13
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Facebook users‘ identities through the c_user cookie. (ECF No. 279 at 21-28.) Hulu denies that it

15

knew this. (E.g., ECF No. 285 at 7.) Again, there is no dispute that from April 2010 to June 2012

16

the titles of videos being watched appeared in Hulu‘s watch-page addresses. The plaintiffs do not

17

cite the facts discussed below to show Hulu‘s knowledge that Facebook might combine these

18

things to yield PII under the VPPA. They marshal these facts to show only that Hulu knew that,

19

when the Like button loaded, the c_user cookie would send user-identifying information to

20

Facebook. (See ECF No. 279 at 21-28.) That is, again, only one element of an actionable VPPA

21

claim. The court addresses these facts to fully account for the evidence before it, and so to fully

22

consider whether — apart from the issue of a connection between the c_user and watch-page data

23

— those facts somehow raise a triable claim under the VPPA.

24

A. Show_Faces

25

The plaintiffs first point to the ―show_faces‖ attribute of the Like button. (ECF No. 279 at 21-

26

23.) Show_faces is a Facebook-designed feature within the Like button that Hulu could set to

27
28

4

These citations are to the original page numbers of the Tom and Wu depositions.

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either show_faces=true or show_faces=false. (See id. at 21-22; Richard Decl. – ECF No. 280-8 at

2

9-10, ¶ 23.) When the Like button loads, if show_faces=true, then ―Facebook identifies the

3

logged-in user‖ and ―identifies which of the user‘s Facebook friends have like[d] the web page‖

4

(ECF No. 279 at 21-22), which necessarily means that they liked the specific video that the user

5

was watching. Facebook then sends to the Hulu user‘s web page the Like button along with

6

pictures of the user‘s Facebook friends who have liked the page. (Id. at 22.) Having been aware of

7

this feature, the plaintiffs‘ argument essentially runs, Hulu must have known that Facebook could

8

identify Hulu users through the Like button; that is inherent in locating the user‘s friends. (See id.

9

at 22-23.) Moreover, say the plaintiffs, whether this feature is set to true or false is ―not relevant.‖
(Id. at 22.) Facebook would identify the user in either case. The true or false setting ―merely

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affected how Facebook used [the] identifier in responding to the Like button request‖ — meaning,

12

whether Facebook sent a user‘s friends‘ pictures to load alongside the Like button. (See id.;

13

Richard Decl. – ECF No. 287-3 at 11, ¶ 28.1.)5

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The show_faces feature does not raise a genuine fact issue on the plaintiffs‘ VPPA claims. The

15

only proof of how Hulu implemented this feature lies in Hulu‘s source code. That code shows that

16

Hulu set show_faces not to true but to false. (Richard Decl. (Ex. 43) – ECF No. 280-51 at 2.)

17

There is no evidence of what gets sent to Facebook when show_faces=false. There is no evidence,

18

in particular, that, when this feature is set to false, Hulu sends Facebook both the user‘s and a

19

video‘s identity. Even if that information is sent when show_faces is set to false, there is no proof

20

that Hulu knew this.
The plaintiffs argue that whether Hulu set show_faces to true or false is ―not relevant.‖ (ECF

21

22

No. 280-4 at 22.) Citing an assertion by their expert, they suggest that user- and video-identifying

23

information would have been sent to Facebook whether this feature was set to true or false. (Id.;

24

see Richard Decl. – ECF No. 280-8 at 11, ¶ 28.1.) But the plaintiffs‘ expert never shows this. He

25
26
27
28

5

Hulu makes numerous objections to the testimony of the plaintiffs‘ expert, Dr. Golden Richard,
on the topic of the show_faces feature and other items. (See ECF No. 285 at 10-11, 13 nn. 2-3, 15
nn. 5-6, 17-18 nn. 7-8.) The court does not rule on these objections. Even considering Dr.
Richard‘s testimony, for the reasons given throughout this order, the court holds that the plaintiffs
have not raised a genuine issue for trial.
ORDER – 11-3764 LB
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does not empirically prove that show_faces=false would send Facebook information amounting to

2

a disclosure of PII. He does not identify documentation stating that show_faces=false would send

3

user-identifying information to Facebook. He did not test the false setting to determine what Hulu

4

would send Facebook in that configuration. (See id. at 10-11, ¶¶ 26-28.2.) He asserts that the

5

setting ―merely affected how Facebook used [a user‘s] identifier in responding to the Like button

6

request.‖ (Id. at 11, ¶ 28.1.) (That is, the false setting would tell Facebook not to display a user‘s

7

friends‘ pictures — but Facebook would still combine the user‘s and video‘s identifying

8

information.) Assert, however, is all that the plaintiffs‘ expert does on this point. (See id.) Raw

9

assertion does not raise a genuine issue under Rule 56. See, e.g., Taylor v. List, 880 F.2d 1040,

10

1045-46 (9th Cir. 1989) (―A summary judgment motion cannot be defeated by relying solely on

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conclusory allegations unsupported by factual data.‖); Hardwick v. Complete Skycap Servs., Inc.,

12

247 F. App'x 42, 44 (9th Cir. 2007) (―unsupported assertions‖ insufficient to overcome summary-

13

judgment motion); see also Warren v. Shaw Grp., Inc., 825 F. Supp. 2d 1052, 1053 (D. Nev.

14

2011) (―A principal purpose of summary judgment is ‗to isolate and dispose of factually

15

unsupported claims.‘‖ (quoting in part Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).

16

There is no proof that goes the necessary — indeed, pivotal — further step of showing that Hulu

17

knew that show_faces=false would disclose that a specific user had watched a specific video.

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The plaintiffs, through their expert, next point to three exhibits that they say show that ―Hulu

19

implemented the Like button with the attribute of show_faces=true.‖ (Richard Decl. – ECF No.

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280-8 at 11, ¶ 29.) This constitutes part of the evidence showing that ―Hulu had direct knowledge

21

that its request to Facebook [to load the Like button] included users‘ identifiers.‖ (ECF No. 280-4

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at 21.) The exhibits in question (ECF Nos. 280-14 to -16) reproduce lines of Hulu code within

23

which appears the element, show_faces=true. (E.g., ECF No. 280-14 at 5.) All three documents

24

carry the appellation ―site-tf.‖ Hulu has explained that this ―tf‖ tag shows that the code applies to

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Hulu‘s Japanese website (ECF No. 285 at 13); the plaintiffs have not contradicted that assertion.

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These documents do not prove that Hulu set show_faces to true for the U.S. services involved in

27

this case.

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The plaintiffs also point to an email thread in which Hulu employees appear to discuss the
ORDER – 11-3764 LB

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aesthetic effects of loading a user‘s friends‘ faces around the Like button. (See ECF No. 280-8 at

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11-12, ¶¶ 30-31; ECF No. 280-11 (exhibit).) But, as the plaintiffs‘ expert himself describes

3

matters, these emails ―discuss[] the display‖ of ―the Like button with show_faces=true.‖ (ECF No.

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280-8 at 11, ¶ 30.) The only evidence, again, is that when it implemented this feature Hulu set it to

5

false. These emails do not show that Hulu knew anything about what information would be sent to

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Facebook under the false configuration. These emails do show that Hulu employees were

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generally aware of how the Like button would display ―with show_faces=true,‖ and, to that

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extent, the court considers them.

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The plaintiffs insist that the show_faces evidence permits a ―reasonable inference‖ that Hulu
knew that it was sending Facebook PII. It is, after all, obvious that show_faces=true enables

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Facebook to determine which videos a specific user is watching; otherwise, it could not display

12

that user‘s friends as having like that video. More broadly, the plaintiffs urge, ―we all know‖ how

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these sorts of Internet services work: personal information is constantly shared and connected. The

14

court agrees that it would take willful ignorance to pretend otherwise. But a jury cannot be

15

allowed to pass on liability based on broad hand waves toward what we all know, what we all

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expect about how our personal information moves around, and how things generally work in the

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age of the Internet. Triable claims must still be rooted in reasonably specific proof about what in

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fact was done here, what information was sent and connected here, and what Hulu actually knew

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about these things. The plaintiffs‘ efforts to prove a prima facie claim — through the source code,

20

for example, or the quotidian emails among Hulu employees — show that they understand the

21

need to ground their claims in concrete and particular facts. In the end, though, the show_faces

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evidence suggests at most what Hulu should have known generally about how show_faces=true

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worked. The evidence does not show that Hulu actually implemented show_faces=true. It does not

24

show what show_faces sends Facebook when set to false. And it does not show that Hulu actually

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knew, when it implemented show_faces=false, that (under the plaintiffs‘ hypothesis) it was

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sending Facebook information connecting an identified user to identified videos. The show_faces

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evidence therefore does not yield a genuine issue for trial.

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ORDER – 11-3764 LB

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B. Hulu’s “Internal Testing” And “Session Captures”

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The plaintiffs next contend that ―session captures‖ from Hulu‘s internal testing show that

3

―Hulu knew that Facebook maintained one or more cookies that identified logged-in Facebook

4

users.‖ (ECF No. 279 at 23-24.) (―Session captures‖ record the actual data sent between a browser

5

and the Web pages on Hulu.) ―For example,‖ the plaintiffs write, in preparing to launch a ―social‖-

6

integration feature with Facebook in 2011, a Hulu tester ―captured requests sent from his browser

7

while he visited a Hulu web page.‖ (Id. at 23.) ―The traffic captures show the Hulu developer‘s

8

own Facebook ID being sent to Facebook in a c_user cookie when he was logged in to Facebook.‖

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(Id. at 23; see Richard Decl. – ECF No. 280-8 at 14-16, ¶¶ 37-42.)

10

The court has carefully considered this point and finds Hulu‘s responsive analysis in all

United States District Court
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respects correct. (See ECF No. 285 at 15-16.) First, at least two of the exhibits that the plaintiffs‘

12

expert cites do not involve the Like button on Hulu‘s watch pages; they involve the company‘s

13

different Facebook Connect feature. (ECF No. 280-19 at 2; ECF No. 280-20 at 2.) This feature is

14

what Hulu was preparing to launch and what it was testing when it generated the subject session

15

captures. The plaintiffs have excluded the Facebook Connect feature from this litigation; the court

16

recognized this when it ruled on class certification. (See ECF No. 211 at 30.)

17

Furthermore, the session data do not show that the c_user cookie contained a user‘s Facebook

18

ID. As Hulu rightly observes, the session captures that the plaintiffs rely upon ―include the value

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‗c_user=55431124.‘‖ (ECF No. 285 at 16; see Richard Decl. 280-8 at 14-16, ¶¶ 39-39.2, 40-41.)

20

As it happens, ―55431124‖ is a Facebook user ID. There is no proof that anyone at Hulu saw this,

21

knew generally what c_user signified, or recognized ―55431124‖ as a Facebook ID — the latter

22

two things being far from obvious from the face of the data. The plaintiffs‘ expert himself had to

23

conduct additional investigation, though a third website, to determine what ―55431124‖ signified.

24

(Richard Decl. – ECF No. 280-8 at 15-16, ¶ 40.) There is no proof that anyone at Hulu had reason

25

to, or actually did, pursue this determination.

26

Finally on this point, nothing about the Facebook Connect session-captures suggests — or

27

creates an issue of triable fact — that Hulu knew that the c_user cookie would be sent to

28

Facebook, and would carry user-identifying information, when the Like button loaded on Hulu‘s
ORDER – 11-3764 LB

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watch pages. This is true even as the plaintiffs themselves describe this information. (See ECF No.

2

279 at 23-24.)

3

C. Hulu and Nielsen Ad-Tracking

4

The plaintiffs contend that Hulu‘s work with the Nielsen Company ―show[s] that Hulu knew

5

that [users‘] personal identifiers were being transmitted to Facebook.‖ (ECF No. 279 at 24.) The

6

plaintiffs explain:
In early 2012, Hulu contracted with the Nielsen Company for
services to help measure the effectiveness of Hulu‘s ad delivery.
Richard Decl. [ECF No. 287-3 at 17], ¶ 43. Nielsen informed Hulu .
. . that the ads being measured would cause requests to be routed to
Facebook through users‘ browsers, so Facebook could use its
―logged-in cookie‖ to identify users and provide demographic
information about them.

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(ECF No. 279 at 24-25.) The plaintiffs continue: ―Hulu‘s understanding of the role of the
Facebook cookies in identifying users is confirmed‖ by the fact that Hulu then ―touted‖ to an
advertiser its ability to track advertising effectiveness through Facebook‘s logged-in cookie. (Id. at
25.)
This probably does show that Hulu knew that a Facebook cookie could be used to identify
Hulu users. But it shows this in connection with Nielsen-tracked ads. It does not involve the Like
button that is at issue here. This evidence shows Hulu‘s knowledge that a Facebook cookie,
sufficient to identify a Hulu user, could be triggered by ads that Nielsen was monitoring for Hulu.
It does not show that Hulu knew that a user-identifying cookie would be sent to Facebook when
the Like button loaded; nor does it show that that cookie might be connected to a watch-page
URL.
D. Previously Submitted Evidence
The plaintiffs also argue that the court has already found — and Hulu has ―not rebutted‖ —
sufficient ―fact issues‖ to warrant submitting their VPPA claim to a jury. (ECF No. 279 at 26-27;
see ECF No. 194 at 24-26.) ―For instance,‖ the plaintiffs correctly write, the court‘s previous order
pointed to Hulu emails establishing that ―Hulu knew that vendors can place cookies on the user‘s
computer.‖ (ECF No. 279 at 26.) Additionally, ―[t]he Court also noted that ‗[e]mails also show
[that] Hulu knew that cookies with identifying information were sent, [and] Hulu‘s awareness that
ORDER – 11-3764 LB

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vendors could collect data and use it . . . to . . . ‗identify a user in the real world.‘‖ (Id. (quoting in

2

part ECF No. 194 at 25).) Finally in this vein, and as the court recognized, Hulu‘s internal emails

3

―suggest that Hulu knew that using beacon technology to disclose user data could result in

4

identification of actual users,‖ that Hulu ―recognized the VPPA implications‖ of this, and yet

5

chose to ―accept the legal risk of passing identifying data‖ because of ―the business benefits of

6

these analytics,‖ at least ―so long as it is not passing unique, identifying information . . . .‖ (ECF

7

No. 279 at 26-27 (quoting ECF 194 at 25).)

8

The court does not think that these items raise a genuine issue of material fact on the plaintiffs‘
specific VPPA claims, however, for several reasons. Primarily, these emails are too general. They

10

are too general in that they discuss ―vendors‖ in the abstract, and what vendors ―can‖ do; they do

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United States District Court
Northern District of California

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not specifically name Facebook and what Hulu actually did or knew vis-à-vis Facebook. They are

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too general again in that none of this information supplies proof of the specific elements involved

13

in the plaintiffs‘ actual claim for relief. They do not address the Like button, the c_user cookie, the

14

watch-page URLs, or any connection among these things.

15

With respect to Hulu‘s recognizing the possible ―VPPA implications‖ of some of its conduct

16

and deciding nonetheless to ―accept the legal risk,‖ as Hulu correctly points out, the relevant email

17

exchange ―concerned Nielsen and comScore,‖ vendors who are ―not part of the [plaintiffs‘]

18

remaining VPPA claim.‖ (ECF No. 285 at 12.) The ―beacon technology,‖ too, had to do with the

19

earlier claims concerning comScore; it had nothing to do with sending any information to

20

Facebook. (See ECF No. 194 at 5-6 (explaining comScore‘s use of ―beacon technology‖).) And to

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the extent that loading the Like button is akin to beacon technology, again, there is no evidence of

22

a connection to the watch-page URLs.

23

The court continues to adhere to its previous statement that these emails ―suggest[ed] fact

24

issues‖ about Hulu‘s knowledge. The court made that point, however, in the context of an earlier

25

motion made before discovery was closed and while other claims were still in play. The court did

26

not mean to suggest that these items, taken by themselves, would yield a triable claim under any

27

specific theory of liability — and certainly not under the plaintiffs‘ remaining theory, which

28

makes specific allegations about the Like button, Facebook‘s c_user cookie, and the watch-page
ORDER – 11-3764 LB

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URLs. The plaintiffs urge the court not to dismiss these facts as ―too general or not specific to

2

Facebook.‖ (ECF No. 279 at 27.) In ―fact-intensive inquiries involving questions of ‗knowledge,‘‖

3

the plaintiffs write, ―there will seldom be direct evidence of knowledge . . . and other types of . . .

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circumstantial evidence come into play.‖ (Id.) If this observation is unobjectionable as a general

5

point, it is nonetheless unconvincing here. The emails to which the plaintiffs point are not

6

―circumstantial‖ proof of the specific allegations that remain in play; they are, at best, general

7

contextual evidence of what Hulu knew, and what steps it took, in other areas that also involved

8

user-identifying information. In the precise context of the claims before the court, these emails do

9

not establish a genuine issue of material fact that allows the court to put the plaintiffs‘ claims —

10

which, again, make specific assertions about the Like button, the c_user cookie, and the watch-

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page URLs — before a jury.

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E. Hulu’s Privacy Policy

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The plaintiffs next point to the following language in Hulu‘s ―privacy policy‖:

14

In addition, if you [i.e., the Hulu user] visit Hulu.com while logged
into one of these services, the third-party service provider may be
able to identify you and to associate the technical information
provided by your web browser with other information the service
already has about you.

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(ECF No. 279 at 26.) ―Hulu included [this] statement in a section about connecting with

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Facebook,‖ the plaintiffs write, and it constitutes ―Hulu‘s public admission that logged-in users‖

19

— meaning those logged into Facebook — ―may be recognized by Facebook.‖ (Id. (emphasis

20

added).) This fact ―alone,‖ and certainly when ―taken together‖ with the facts discussed above,

21

sufficiently prove Hulu‘s knowledge. (Id.)

22

This policy might help depict a context generally showing Hulu‘s knowledge about what sorts

23

of information ―may‖ be transmitted when a Hulu user is connected to Facebook. But it is

24

preliminary evidence, which does not establish anything conclusively (save for garden-variety

25

caution on Hulu‘s part), and is too general to ―alone‖ raise a genuine issue of material fact on the

26

plaintiffs‘ specific claims. Neither does it combine with other facts that have been adduced here to

27

create a genuine issue that Hulu knew that the c_user cookie would be sent to Facebook, and

28

would contain information that could identify that user, when the Like button loaded on a Hulu
ORDER – 11-3764 LB

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watch page. In the context of what has actually been proved here, this excerpt from Hulu‘s privacy

2

policy does not erect a triable VPPA claim.

3

F. Filed Complaint

4

Finally, the plaintiffs urge that Hulu ―cannot legitimately argue that it did not have

5

‗knowledge‘ of its VPPA violations after Plaintiffs filed suit . . . .‖ (ECF No. 279 at 27.) For this

6

reason, the court ―cannot grant summary judgment as to any claims raised after Plaintiffs‘ initial

7

complaint in this matter was filed.‖ (Id. at 27-28.) The plaintiffs‘ implication seems to be that, if

8

nothing else did, their complaint gave Hulu knowledge that it was (now speaking broadly)

9

violating the VPPA.

10

The court finds this somewhat unusual argument unavailing. First, the plaintiffs have not cited

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Northern District of California

11

any authority suggesting that the filing of a complaint can itself provide sufficient evidence of an

12

element necessary to claims raised within that complaint. The court is not aware of any such

13

authority. Maybe a complaint can supply adequate proof of its own allegations. If it can, though,

14

the court would need to see clear precedent allowing that. Absent such authority, the court is not

15

inclined to sign on to this theory.

16

Second, the complaint is too general to supply the ―knowledge‖ proof that the plaintiffs‘

17

existing legal theory would need. The plaintiffs‘ extant legal theory involves the several specific

18

components that that the court has discussed throughout this order: the Like button; the c_user

19

cookie; and the title-bearing watch-page URLs. None of the plaintiffs‘ complaints mentions these

20

things. (See ECF Nos. 1, 13, 37, 83.) All other concerns aside, generally suing Hulu for a ―VPPA

21

violation[]‖ does not itself yield knowledge that, when the Like button loaded, the c_user cookie

22

sent Facebook information that amounted to a disclosure of PII under the VPPA.

23

CONCLUSION

24

There is no genuine issue of material fact that Hulu knew that Facebook might link the user-

25

identifying information in the c_user cookie with title-bearing watch-page addresses so as to

26

construct ―personally identifiable information‖ as defined by the VPPA. For this reason, the court

27

grants Hulu‘s motion for summary judgment. The Second Amended Complaint (ECF No. 83) is

28

dismissed with prejudice.
ORDER – 11-3764 LB

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This disposes of ECF No. 230.

2

IT IS SO ORDERED.

3

Dated: March 31, 2015
______________________________________
LAUREL BEELER
United States Magistrate Judge

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United States District Court
Northern District of California

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ORDER – 11-3764 LB

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