Czarnionka v. The Epoch Times Association, Inc.

Filing 25

ORDER AND OPINION DENYING MOTION TO DISMISS re: #17 MOTION to Dismiss Class Action Complaint. filed by The Epoch Times Association, Inc. For the reasons discussed, the motion to dismiss is denied. The Initial Case Management Conference shall be held December 16, 2022, 10:00 am. The Clerk of the Court shall terminate Motion to Dismiss (ECF No. 17). SO ORDERED., ( Initial Conference set for 12/16/2022 at 10:00 AM before Judge Alvin K. Hellerstein.) (Signed by Judge Alvin K. Hellerstein on 11/17/22) (yv)

Case 1:22-cv-06348-AKH Document 25 Filed 11/17/22 Page 1 of 9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

----------------------------------------------------------

X

LAWRENCE CZARNIONKA, individually and
on behalf of all others similarly situated,

ORDER AND OPINION
DENYING MOTION TO
DISMISS

Plaintiff,
-against-

22 Civ. 6348 (AKH)
THE EPOCH TIMES ASSOCIATION, INC.,
Defendants.
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X

AL VINK. HELLERSTEIN, U.S.D.J.:
Plaintiff Lawrence Czamionka, individually and on behalf of all other similarly
situated persons ("Plaintiff') brings this putative consumer privacy class action against The
Epoch Times Association, Inc. ("Epoch Times" or "Defendant") alleging violation of the federal
Video Privacy Protection Act, 18 U.S.C. § 2710 ("VPPA"). (Complaint ("Compl."), ECF No.
1.) Defendants move to dismiss for failure to state a claim upon which relief may be granted (R.
12(b)(6)). (ECF No. 17). For the reasons discussed below, Defendants' motion to dismiss for
failure to state a claim is denied.
BACKGROUND
The following facts are taken from the Complaint, which I must "accept[] as true"
for the purpose of this motion. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Defendant is an
international newspaper and media company headquartered in New York, New York. Compl.
10. Defendant operates the website theepochtimes.com, where subscribers may view
Defendant's video content. Id. i-fi-f 18, 20. As part of the subscription process, users provide
Defendant with their name, email address, and billing information. Id.

1

,r 20.

,r

Case 1:22-cv-06348-AKH Document 25 Filed 11/17/22 Page 2 of 9

Defendant has installed a Facebook Pixel on its website. Id.

1 19.

The Pixel is a

string of code that allows Defendant to collect information about how users interact with their
site, such as whether users initiate purchases, what content users view, and other details. Id.

11

4, 22-23. When a subscriber views a video on Defendant's website, the Pixel sends Facebook
information about the subscriber, including the title and URL of the video and the subscriber's
Facebook ID ("FID"), which is a unique string of numbers linked to the subscriber's Facebook
profile. Id.

115, 27.

The FID, when entered into a web browser in a specific format

("facebook.com/[FID]"), can be used to navigate to the Face book profile of the particular person
associated with that FID. Id.

15.

Plaintiff Lawrence Czarnionka was a paid Epoch Times subscriber and watched
video content through his subscription. Id. 138-40. He also was a Facebook user during that
time. Id.

1 41.

Plaintiff alleges that Defendant disclosed to Facebook his FID and details about

the videos he watched. Id. On July 27, 2022, Plaintiff brought the present action, on behalf of
himself and a putative class of similarly situated subscribers, seeking injunctive relief and
liquidated damages for alleged violation of the VPP A. Id.

1 62. Defendant moves to dismiss the

claims pursuant to Federal Rule of Civil Procedure l 2(b)( 6) for failure to state a claim. (ECF
No. 17.) Having reviewed the parties' submissions, I find that Plaintiff has plausibly asserted a
claim under the VPPA. Accordingly, Defendants' motion to dismiss for failure to state a claim is
denied.
DISCUSSION
I.

Legal Standard
To survive a Rule 12(b)(6) motion to dismiss, Plaintiffs must allege "sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556

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U.S. at 678. A claim is facially plausible when it pleads "factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
"Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops
short of the line between possibility and plausibility of entitlement to relief." Id.
When considering a motion to dismiss a complaint under Rule 12, the Court must
"accept[] all of the complaint's factual allegations as true and draw[] all reasonable inferences in
the plaintiffs favor." See In re Gen. Elec. Sec. Litig., 844 F. App'x 385, 387 (2d Cir. 2021).
However, the Court is not "bound to accept conclusory allegations or legal conclusions
masquerading as factual conclusions." Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir.
2011). The Court is limited to a "narrow universe of materials." Goel v. Bunge, Ltd., 820 F.3d
554, 559 (2d Cir. 2016). "Generally, [courts] do not look beyond 'facts stated on the face of the
complaint, ... documents appended to the complaint or incorporated in the complaint by
reference, and ... matters of which judicial notice may be taken.'" Id. (quoting Concord

Assocs., L.P. v. Entm't Props. Tr., 817 F.3d 46, 51 n. 2 (2d Cir. 2016)) (alterations in original).
II.

Analysis
Under the VPPA, "[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 for[] relief[.]" 18 U.S.C. § 2710(b)(l). Defendant moves to
dismiss, arguing: (1) Plaintiff fails to plausibly allege that Defendant's disclosures to Facebook
included personally identifiable information ("PII"); (2) Plaintiff fails to plausibly allege that
Defendant "disclosed" his PII; (3) Plaintiff fails to plausibly allege that Defendant "knowingly"
disclosed his PII; and (4) Plaintiffs allegation lack the specificity necessary to determine if the

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VPPA applies to the "video content" he consumed. (Mem. in Support at 4, ECF No. 1.) The
Court addresses each argument in tum.
A. Personally Identifiable Information
The VPP A prohibits video tape service providers from knowingly disclosing
"personally identifiable information concerning any consumer of such provider[.]" 18 U.S.C. §
2710(6)(1 ). The statute provides that PII "includes 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). The First Circuit has adopted a broad approach to PII; in

Yershov v. Gannett Satellite Info. Network, Inc., the District Court held that the transmission of
viewing records along with GPS coordinates and a device's unique identification number
constituted PII despite requiring additional information in order to link Plaintiff to his video
history. 104 F.Supp.3d 135 (D.Mass.2015), at 137-38. However, a majority of courts have
adopted a narrower view, requiring the disclosure itself, without any additional information, to
identify a particular person. See Robinson v. Disney Online, 152 F. Supp. 3d 176, 180 (S.D.N.Y.
2015) (collecting cases).
The Southern District of New York considered the issue in Robinson, where
Disney provided plaintiffs viewing history to a third party along with a device serial number.

Id. at 178. Plaintiff argued that the disclosure constituted PII because the third party could
identify plaintiff by "linking these disclosures with existing personal information obtained
elsewhere." Id. at 180. The District Court rejected this argument, holding that the disclosure
"must itself do the identifying that is relevant for purposes of the VPP A (literally, 'information
which identifies')-not information disclosed by a provider, plus other pieces of information
collected elsewhere by non-defendant third parties." Id. at 182. The court held that "the

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information disclosed by a video tape service provider must, at the very least, identify a
particular person-not just an anonymous individual-and connect this particular person with
his or her viewing history." Id. at 179 (emphasis in original).
Defendant relies on Robinson to argue that Defendant's disclosure to Face book
fails to specifically identify Plaintiff and thus does not constitute PII, because the FID is not
labeled as such in the disclosure and because a Facebook profile is not always associated with a
specific person. Mem. in Support at 4-6. I find this argument unconvincing. Unlike the
anonymized device serial numbers disclosed in Robinson, Facebook need not link the disclosed
FID to personal information obtained elsewhere. The FID itself represents a particular
individual. Indeed, Defendant fails to acknowledge that Robinson itself distinguished FIDs from
the sort of device serial number disclosed by Disney in Robinson: "Nor is the information
disclosed by Disney equivalent to a Facebook ID .... A Facebook ID ... is thus equivalent to a
name-it stands in for a specific person, unlike a device identifier." Robinson, 152 F. Supp. 3d,
at 184. This view is consistent with courts in other district that have considered the very same
question. See In re Hulu Priv. Litig., No. C 11-03764 LB, 2014 WL 1724344, at *14 (N.D. Cal.
Apr. 28, 2014) ("The Facebook User ID is more than a unique, anonymous identifier. It
personally identifies a Facebook user. That it is a string of numbers and letters does not alter the
conclusion. Code is a language, and languages contain names, and the string is the Facebook user
name."); Lebakken v. WebMD LLC, No. 1:22-cv-00644-TWT, ECF No. 40 ("the Court finds that
[Plaintiff] adequately alleged that [Defendant] disclosed her Facebook ID and email address in
connection with her video viewing information to Facebook and that the disclosure of such
information constituted a disclosure of PII"). Accordingly, I find that Plaintiff has plausibly
alleged that Defendant's disclosure constituted PII.

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B. Disclosure of PII
Defendant argues that they did not actually ''disclose" any PII to Facebook
because the Pixel is placed into a user's web browser by Facebook and sends information from
the user's web browser directly to Facebook, independent of any action by Defendant itself.
Defendant notes that the GET request in the Complaint indicates that the request is hosted by
Facebook. See Compl.

,r,r 31.

Defendant further argues that that the MARKUP article cited by

Plaintiff in the Complaint states that Face book, not Defendant, places a "c_ user" cookie on a
user's web browser, and that when users with this cookie browse sites containing the Pixel, "the
tracker communicates with Meta's servers." See Compl.

,r 25; Mem. in Support, at 8.

At the motion to dismiss stage, the Court must "accept[] all of the complaint's
factual allegations as true and draw[] all reasonable inferences in the plaintiffs favor." See In re

Gen. Elec. Sec. Litig., 844 F. App'x 385,387 (2d Cir. 2021). Additionally, courts generally "do
not look beyond 'facts stated on the face of the complaint, ... documents appended to the
complaint or incorporated in the complaint by reference, and ... matters of which judicial notice
may be taken."' Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (citation omitted).
Here, Plaintiff alleges throughout the Complaint that Defendant itself discloses
subscriber information by installing and maintaining the Pixel on its website. See Compl.

,r,r 4,

19, 22, 26-27, 29. Moreover, assuming that the MARKUP article has been fully incorporated by
reference into the Complaint, the contents of that article do not contradict Plaintiffs claims. The
relevant portion of the article states that the "tracker"-which is to say, the Pixelcommunicates with Meta's servers and transmits information about the user. See Mem. in
Support, at 8. As alleged in the Complaint, the Pixel was installed by Defendant on Defendant's
website. It is therefore inaccurate for Defendant to claim that the transmission of information

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occurs "independent of any action by Epoch." Mem in Support, at 9. By installing the Pixel,
Defendant opened a digital door and invited Facebook to enter that door and extract information
from within. See In re Hulu, 2014 WL 1724344, at* 14 ("Throwing Judge Bork's video watch
list in the recycle bin is not a disclosure. Throwing it in the bin knowing that the Washington
Post searches your bin every evening for intelligence about local luminaries might be."). Taking
the factual assertions raised in the Complaint as true, and drawing all reasonable inferences in
Plaintiff's favor, Defendant's installation of the Pixel exposed its subscribers' information to
Facebook. This is sufficient to constitute "disclosure" under the VPP A. I therefore conclude
that disclosure has been plausible alleged.
C. "Knowing" Disclosure of PII
Defendant argues that Plaintiff has not plausibly alleged that "Epoch even knew
the Facebook ID existed much less that Epoch considered the Facebook ID to be PII or knew it
was transmitted[.]" Mem. in Support, at 10. However, Defendant's assertions are contradicted
by the contents of the Complaint. The Complaint plainly alleges that Defendant's "disclosures
were made knowingly, as [Defendant] programmed the Facebook Pixel into its website code,
knowing that Facebook would receive video titles and the subscriber's FID when a subscriber
watched a video." Compl.

,r 59.

The Complaint also states that "Defendant knew that the

Facebook Pixel disclosed PII to Facebook." Id.

,r 30.

Defendant additionally argues that Plaintiff has not alleged that Epoch knew
Facebook "might combine a Facebook user's identity (contained in the c_user cookie) with the
watch page address [i.e., the URL] to yield 'personally identifiable information' under the
VPPA." Mem. in Support, at 10 (citing In re Hulu Privacy Litig., 86 F. Supp 3d 1090, 1095
(N.D. Cal. 2015). However, as discussed supra, Plaintiff has plausibly alleged that the FID itself

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constituted PII. Knowledge of what Facebook might do with the disclosed information to yield
PII is therefore unnecessary. Accordingly, I find that Plaintiff has plausible alleged ''knowing"
disclosure.
D. Applicability of VPP A to Content Consumed
The VPP A defines a "video tape service provider" in relevant part as "any person,
engaged in the business ... of rental, sale, or delivery of prerecorded video cassette tapes or
similar audio visual materials." 18 U.S.C. § 271 0(a)( 4). Defendant argues that Plaintiff has not
plausibly alleged that the VPP A applies to Epoch Times because the Complaint does not allege
whether the videos Plaintiff watched were prerecorded. Indeed, at least two courts have held that
live broadcasts do not fall under the VPP A's definition of regulated content. See Louth v. NFL

Enterprises LLCNo. 1:21-cv-00405-MSM-PAS, 2022 WL 4130866, at *4 (D.R.I. Sept. 12,
2022) (holding that, because "'prerecorded' modifies both 'video cassette tapes' and 'similar
audio visual materials[,]"' the VPP A does not apply to live broadcasts); Order Regarding Motion
to Dismiss at 10-11, Stark v. Patreon, Inc., No. 3 :22-cv-03131 (N.D. Cal. Oct. 13, 2022), ECF
No. 40 (same).
Here, the Complaint alleges that Defendant is "engaged in the business ... of
rental, sale, or delivery of prerecorded video cassette tapes or similar audiovisual materials,"
including "news programs, television shows, documentaries, movies, and other audiovisual
content." Compl.

,r 2.

"[D]rawing all reasonable inferences in the plaintiffs favor," it is

reasonable to infer that Plaintiff consumed prerecorded content of the variety specifically
identified in the Complaint. See In re Gen. Elec. Sec. Litig., 844 F. App'x 385, 387 (2d Cir.
2021 ). Moreover, Defendant does not even allege that it offers live broadcast content on its site.

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Accordingly, I find that Plaintiff has plausibly alleged that the VPP A applies to the video content
he consumed.
CONCLUSION
For the reasons discussed, the motion to dismiss is denied. The Initial Case
Management Conference shall be held December 16, 2022, 10:00 am. The Clerk of the Court
shall terminate Motion to Dismiss (ECF No. 17).

SO ORDERED.
Dated:

~Ir. ~rr.::.._

November 17, 2022
New York, New York

ALVIN K. HELLERSTEIN
United States District Judge

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