Chad Eichenberger v. Espn, Inc., 876 F.3d 979

Plaintiff Chad Eichenberger used the WatchESPN Channel on a Roku device and alleges ESPN disclosed his Roku device serial number and the titles of videos he watched to Adobe Analytics without his consent.
Adobe allegedly linked the disclosed data with other information it had (email, Facebook data, etc.) using a "Visitor Stitching" process to identify individual users, then returned aggregated data to ESPN.
Eichenberger sued under the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710(b)(1), claiming ESPN disclosed "personally identifiable information."
The district court dismissed under Rule 12(b)(6), holding the disclosed data were not "personally identifiable information" as defined by the VPPA.
On appeal, the Ninth Circuit accepted the complaint's allegations as true, addressed Article III standing and the statutory meaning of "personally identifiable information," and affirmed dismissal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Article III standing	VPPA violation itself is a concrete privacy injury; no additional harm required	No concrete injury alleged post-Spokeo; requires additional concrete harm	Plaintiff has standing: VPPA protects a substantive privacy interest so statutory violation suffices as concrete injury
Meaning of "personally identifiable information" under VPPA	Information ESPN disclosed (Roku serial + video titles) is capable of identifying him because Adobe could re-identify using its data	Disclosed data do not "readily permit" identification by an ordinary person; any identification depends on recipient's outside data/tech	Adopts Third Circuit "ordinary person" test: PII includes info that would readily permit an ordinary person to identify an individual’s video-watching; here disclosures are too attenuated, so dismissal affirmed

Mollett v. Netflix, Inc., 795 F.3d 1062 (9th Cir. 2015) (standing and VPPA context)
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (Sup. Ct. 2016) (concrete-injury requirement for Article III standing)
Robins v. Spokeo, Inc., 867 F.3d 1108 (9th Cir. 2017) (post-Spokeo standing analysis)
Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017) (statutory violations that protect concrete interests confer standing)
Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482 (1st Cir. 2016) (broader test: info reasonably and foreseeably likely to reveal video-viewing identity)
In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262 (3d Cir. 2016) ("ordinary person" test for VPPA "personally identifiable information")
Perry v. Cable News Network, Inc., 854 F.3d 1336 (11th Cir. 2017) (post-Spokeo VPPA standing)