146 F.4th 1219
D.C. Cir.2025Background
- Nicole Pileggi, after subscribing to the Washington Examiner’s newsletter, visited the Examiner's website, where her video viewing history was transmitted to Meta (Facebook’s owner) without her consent via the "Meta Pixel" tracking code.
- Pileggi sued the Washington Examiner's owner (Washington Newspaper Publishing Company, LLC) under the federal Video Privacy Protection Act (VPPA), alleging unauthorized disclosure of her personally identifiable video viewing information.
- The district court dismissed her claim, holding she was not a "consumer" under the VPPA as she had not rented, purchased, or subscribed to the videos in question on the website.
- On appeal, Pileggi argued a broader interpretation of "consumer" under the VPPA, asserting her newsletter subscription or any good/service purchase should suffice for statutory protection.
- The D.C. Circuit affirmed the district court, finding she did not qualify as a "consumer" for the videos at issue and thus the VPPA did not protect her for these disclosures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of "Consumer" under VPPA | Purchaser/subscriber of any good or service (e.g., newsletter) should count as a protected consumer. | Only those who rent, purchase, or subscribe to specific video or audio-visual goods/services are consumers under VPPA. | Must subscribe/rent/purchase the actual video or similar material disclosed; broader interpretation rejected. |
| Link Between Subscription and Video Records | Newsletter sign-up is a sufficient connection to claim protection for unrelated website videos. | Newsletter is unrelated; Pileggi did not view website videos through the newsletter; website access was open to all. | No sufficient nexus; newsletter subscription didn't make her a protected consumer for website video disclosures. |
| Applicability of VPPA to Online Videos | VPPA should apply to modern online videos, not just physical tapes. | Even if so, only subscribers/renters/purchasers of such online videos are covered, not general viewers. | Assumed, but statutory protections still require legal consumer status tied to the disclosed videos. |
| Statutory Construction of VPPA Terms | Absence of "video" in "goods/services" (in consumer definition) should allow broader interpretation. | Statutory structure, purpose, and context show intent to limit to video-related transactions/services. | Context and whole-statutory reading control; coverage is limited to video materials/services obtained by the consumer. |
Key Cases Cited
- Spokeo, Inc. v. Robins, 578 U.S. 330 (concreteness of intangible injuries for standing)
- TransUnion LLC v. Ramirez, 594 U.S. 413 (injury similarity to recognized common law harms for Article III standing)
- Perry v. Cable News Network, Inc., 854 F.3d 1336 (VPPA injury as analogous to common law privacy torts)
- Eichenberger v. ESPN, Inc., 876 F.3d 979 (VPPA applies to modern online video disclosures under certain conditions)
- Gadelhak v. AT&T Services, Inc., 950 F.3d 458 (regarding concreteness of privacy invasions under statute)
- Dubin v. United States, 599 U.S. 110 (need to read statutory structure and context as a whole)
- County of Maui v. Hawaii Wildlife Fund, 590 U.S. 165 (interpretive context of statutory terms)