662 F.Supp.3d 1327
N.D. Ga.2023Background
- PBS operates Pbs.org; Jazmine Harris created a free digital account (providing name, email, zip code, IP/cookies) and received periodic newsletters and used the site while logged into Facebook.
- PBS allegedly embedded a Facebook tracking pixel on Pbs.org that transmits a viewer’s Facebook identifier (FID/c_user cookie) together with the video title and video URL to Facebook.
- Harris brought a putative nationwide VPPA claim (18 U.S.C. § 2710) alleging PBS disclosed her personally identifiable video-viewing information to Facebook without consent.
- PBS moved to dismiss, arguing Harris was not a VPPA “consumer” (subscriber), PBS did not disclose personally identifiable information or video-identifying information, and PBS lacked the requisite knowledge.
- The Court denied the motion to dismiss, finding Harris plausibly alleged subscriber status, that PBS’s installation/use of the pixel caused disclosure of bundled FID + video identifiers, and that she adequately pleaded knowing disclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Harris is a "consumer" (subscriber) under the VPPA | Harris registered for a PBS account, provided personal information, received recurring newsletters, had access to PBS video content — enough to be a subscriber | PBS: no payment, no commitment or restricted-content access; mere free use/registration like Ellis is insufficient | Court: Allegations (account, personal info, periodic services, access to video) sufficiently plead subscriber status under Ellis test |
| Whether PBS disclosed "personally identifiable information" under the VPPA | Harris: PBS’s pixel bundled her FID with video title/URL and sent both to Facebook, constituting disclosure of PII | PBS: any cookie transmission is caused by user's Facebook session, not PBS; PBS did not itself send Harris’s FID or identify video-viewing | Court: At pleading stage, accepts that PBS’s pixel caused the bundling/transmission; allegations suffice to plead disclosure |
| Whether the transmitted data identified video materials "requested or obtained" | Harris: the transmitted video title/URL linked to a specific video; clicking the video title constitutes requesting/obtaining that video | PBS: the URL points to a page with non-video content; the screenshot suggests the video was not actually played; Facebook couldn’t know user requested/watched the video | Court: Resolves factual disputes in plaintiff’s favor at this stage; accepts allegation that transmitted data identified a requested/obtained video |
| Whether Harris pleaded the requisite scienter ("knowing" disclosure) | Harris: PBS intentionally installed/configured the pixel to transmit viewing data; thus it knew the pixel would disclose view+FID information | PBS: must have known each user was logged into Facebook and that a specific disclosure would identify user+video; Harris alleged no such specific knowledge | Court: Sufficiently alleged knowledge because PBS allegedly chose/programmed the pixel to transmit viewing+FID data; specific knowledge of each user’s Facebook status not required at pleading stage |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: factual allegations must plausibly state a claim)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must cross line from conceivable to plausible)
- Ellis v. Cartoon Network, Inc., 803 F.3d 1251 (11th Cir. 2015) (multifactor test for VPPA subscriber: payment, registration, commitment, delivery, association, restricted access)
- Perry v. Cable News Network, Inc., 854 F.3d 1336 (11th Cir. 2017) (subscription via third party does not make one subscriber of network)
- Bryant v. Avado Brands, Inc., 187 F.3d 1271 (11th Cir. 1999) (construe ambiguous factual allegations in plaintiff's favor at motion to dismiss)
- CSX Corp. v. United States, 18 F.4th 672 (11th Cir. 2021) (when statute is clear, courts rely on text over legislative history)
- Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482 (1st Cir. 2016) (discusses limits of subscriber analysis where app transmission of device identifiers implicated VPPA)