Opinion · District Court, D. Massachusetts
Belozerov v. Gannett Company, Inc.
Belozerov v. Gannett Co., No. 4:22-cv-10838, UP10200749 (District Court, D. Massachusetts Dec. 20, 2022)
- Type
- Opinion
- Court
- District Court, D. Massachusetts
- Jurisdiction
- Massachusetts
- Date
- 2022-12-20
- Topic
- intellectual-property-and-technology
United States District Court District of Massachusetts ) Serge Belozerov on behalf of ) himself and all others similarly ) situated, ) ) Plaintiff, ) Civil Action No. ) 22-10838-NMG v. ) ) Gannett Co., Inc., ) ) Defendant. ) ) MEMORANDUM & ORDER This consumer digital privacy class action arises from alleged violations of the Video Privacy Protection Act, 18 U.S.C. § 2710 (“the VPPA”). The named plaintiff, Serge Belozerov (“plaintiff” or “Belozerov”), seeks on his own behalf and behalf of persons similarly situated, judicial relief from Gannett Co., Inc. (“defendant” or “Gannett”), the owner of the newspaper USA Today. Plaintiff alleges that Gannett unlawfully disclosed his personally identifiable information (“PII”) to Facebook. Plaintiff brings claims for damages as a result of the alleged violations of the VPPA.
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United States District Court
District of Massachusetts
)
Serge Belozerov on behalf of )
himself and all others similarly )
situated, )
)
Plaintiff, ) Civil Action No.
) 22-10838-NMG
v. )
)
Gannett Co., Inc., )
)
Defendant. )
)
MEMORANDUM & ORDER
This consumer digital privacy class action arises from
alleged violations of the Video Privacy Protection Act, 18 U.S.C. § 2710
(“the VPPA”). The named plaintiff, Serge
Belozerov (“plaintiff” or “Belozerov”), seeks on his own behalf
and behalf of persons similarly situated, judicial relief from
Gannett Co., Inc. (“defendant” or “Gannett”), the owner of the
newspaper USA Today. Plaintiff alleges that Gannett unlawfully
disclosed his personally identifiable information (“PII”) to
Facebook.
Plaintiff brings claims for damages as a result of the
alleged violations of the VPPA. Pending before the Court is
defendant’s motion to dismiss.
I. Background
A. The Parties
Plaintiff Serge Belozerov resides in Worcester,
Massachusetts. Defendant is an American media company
headquartered in McLean, Virginia that owns more than 260 daily
publications, including USA Today.
B. Factual History
USA Today is one of the most circulated newspapers in the
United States. It has hundreds of thousands of digital
subscribers and offers two kinds of digital subscriptions: one
paid and one unpaid. Both subscriptions provide access to
articles and video content. In order to subscribe, users must
provide their name and email address.
According to the complaint, Gannett collects and shares the
personal information of visitors to its website and mobile phone
application (“app”) with third parties through the use of
“cookies,” software development kits and pixels. Specifically,
Gannett had Facebook create a code for a tracking pixel. The
tracking pixel is an invisible tool that would enable Gannett to
track what video media its users watched on the USA Today
website or app and report it to Facebook. Gannett then
installed the tracking pixel on its website and app to provide
targeted advertising to its users.
As alleged in the complaint, Gannett sends Facebook the
digital subscriber’s Facebook ID and the name and Uniform
Resource Locator (“URL”) of the video content viewed on the USA
Today website or app as one data point. A Facebook ID (“FID”)
is a unique identifier that can be used to look up an
individual’s Facebook user account. Together, that information
enables Facebook or any computer-savvy person to discern the
identity of the digital subscriber and the specific video
content he or she viewed on the USA Today website or app.
Although USA Today’s privacy policy informs users that
their website activity and personal information may be shared
with third parties for targeted advertising, Gannett purportedly
never obtained express consent from its digital subscribers to
share their personal information with Facebook.
Plaintiff Belozerov has been a USA Today digital subscriber
since approximately 2015 and has maintained a Facebook account
since approximately 2008. From 2015 to the present, plaintiff
used his USA Today digital subscription to view videos through
defendant’s website and app. Belozerov alleges that he never
consented, agreed, authorized or otherwise permitted defendant
to disclose his personal information to Facebook. Moreover, he
contends that he was not given notice that defendant discloses
that information nor any means of opting out of such
disclosures. Nonetheless, plaintiff’s personal information was
disclosed without his express written consent to Facebook
pursuant to the process described above.
C. Procedural History
On June 1, 2022, plaintiff filed a class action complaint
in this Court alleging violations of the VPPA. Belozerov seeks
(1) a determination that this action may be maintained as a
class action, (2) an order declaring that defendant’s conduct
violates the VPPA, (3) payment of $2,500 from defendant to
plaintiff and each class member pursuant to 18 U.S.C. § 2710
(c)(2)(A), (4) punitive damages, (5) prejudgment interest
on all amounts awarded, (6) an order of restitution and other
forms of equitable monetary relief, (7) injunctive relief and
(8) attorneys’ fees.
Defendant has moved to dismiss the complaint in a timely
fashion.
II. Motion to Dismiss
A. Legal Standard
To survive a motion under Fed. R. Civ. P. 12(b)(6), the
subject pleading must contain sufficient factual matter to state
a claim for relief that is actionable as a matter of law and
“plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly,550 U.S. 544, 570
(2007)). A claim is facially plausible if, after accepting as true all non-conclusory factual allegations, the court can draw the reasonable inference that the defendant is liable for the misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset,640 F.3d 1, 12
(1st Cir. 2011).
When rendering that determination, a court may not look
beyond the facts alleged in the complaint, documents
incorporated by reference therein and facts susceptible to
judicial notice. Haley v. City of Boston, 657 F.3d 39, 46
(1st Cir. 2011). A court also may not disregard properly pled factual allegations even if actual proof of those facts is improbable. Ocasio-Hernandez,640 F.3d at 12
. Rather, the necessary inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw.Id. at 13
. The assessment is holistic:
the complaint should be read as a whole, not parsed
piece by piece to determine whether each allegation,
in isolation, is plausible[.]
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 103
(1st Cir. 2013), quoting Ocasio-Hernandez,640 F.3d at 14
.
B. Video Privacy Protection Act, 18 U.S.C. § 2710
The VPPA was enacted in 1988 in response to a profile on
Judge Robert H. Bork’s video rental history by a Washington
newspaper published during his Supreme Court confirmation
hearings. S. Rep. No. 100–599, at 5 (1988). The profile listed
146 films that his family had rented from a video store. Id.
Members of the Senate Judiciary Committee denounced the disclosure and introduced the bill to protect the right to privacy amidst the growth of advanced information technology.Id. at 5-8
.
The VPPA generally prohibits the knowing disclosure of a
customer’s video rental or sale records without informed written
consent of the customer. The statute provides a civil damages
remedy against those who violate the statute, stating:
[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 . . .
18 U.S.C. § 2710
(b)(1). The statute defines a “video tape
service provider” as
any person, engaged in the business . . . of rental,
sale, or delivery of prerecorded video cassette tapes
or similar audio visual materials[.]
Id.
§ 2710(a)(4). A consumer is “any renter, purchaser, or
subscriber of goods or services from a video tape services
provider.” Id. § 2710(a)(1). The statute states that
“personally identifiable information,” or PII,
includes information which identifies a person as
having requested or obtained specific video materials
or services from a video tape service provider[.]
Id. § 2710(a)(3).
C. Application
Defendant moves to dismiss plaintiff’s complaint on three
grounds: (1) that it is a news provider and does not meet the
statutory definition of a “video tape services provider,” (2)
that plaintiff does not plausibly allege that Gannett disclosed
PII and (3) that even if it did disclose PII, it did not do so
knowingly. The Court will address each argument in turn.
1. Video Tape Service Provider
Gannett asserts that Belozerov is not entitled to relief
under the VPPA because he did not subscribe to “goods or
services from a video tape services provider.” 18 U.S.C. § 2710
(a)(1). According to Gannett, because Belozerov did not pay to access USA Today’s content, he cannot be a “subscriber of goods or services.” Seeid.
The First Circuit has already struck down a nearly
identical argument made by Gannett six years ago, “decline[ing]
to interpret the [VPPA] as incorporating monetary payment as a
necessary element.” Yershov v. Gannett Satellite Information
Network, Inc., 820 F.3d 482, 488
(1st Cir. 2016). Thus,
plaintiff has sufficiently pled that he was a subscriber of USA
Today.
Defendant next maintains that USA Today is a news provider
and thus not primarily “engaged in the business . . . of rental,
sale, or delivery of prerecorded video cassette tapes or similar
audio visual materials.” 18 U.S.C. § 2710
(a)(4). Plaintiff responds that Gannett is in fact a video tape services provider as defined by the VPPA because it is engaged in the business of delivering computer files containing video content, which are “similar audio visual materials” to prerecorded cassette tapes.Id.
Moreover, contrary to defendant’s argument, plaintiff
stresses that the VPPA is not limited to entities that are
primarily engaged in the business of providing video content,
nor is it limited to audio visual materials of a certain
content, medium or duration.
Again, the First Circuit decision in Yershov provides
guidance on this issue. 820 F.3d at 489-90
. Although the First Circuit did not explicitly analyze whether Gannett was a “video tape service provider” because Gannett did not challenge that element of the claim, it ultimately held that the plaintiff plausibly pled a case where the VPPA’s prohibition on disclosure applied.Id.
at 485 n.2, 489-90.
In their pleadings, both parties characterize the case at
bar and Yershov as involving “the same issues.” In fact both
cases involve consumers’ lawsuits against USA Today for
violations of the VPPA. Therefore, this Court will follow
controlling First Circuit precedent and find that plaintiff has
plausibly pled that he subscribed to goods and services from a
video tape services provider under the VPPA. Id. at 489-90
.
2. Disclosure of PII
Rather than disputing whether the information that Gannett
collected from plaintiff constitutes PII, defendant argues that
it did not actually “disclose” any PII to Facebook. In support
of its argument, defendant attempts to introduce contradictory
facts stating that Facebook, not Gannett, collects such
information from the consumer.
The Court notes that, as alleged in the complaint, when a
user watches video media on the USA Today website, USA Today
sends Facebook certain information, including the video content
name, its URL and the user’s Facebook ID.
A Facebook ID meets the broad definition of PII in this
circuit. In Yershov, the First Circuit analyzed the language of
the statute to conclude that
PII is not limited to information that explicitly
names a person [and] many types of information other
than a name can easily identify a person.
Yershov, 820 F.3d at 486
. A Facebook ID is a unique identifier that allows anyone to discover the user’s identity. Furthermore, courts in other circuits have explicitly held that a Facebook ID constitutes PII. See Czarnionka v. Epoch Times Ass’n, Inc., No. 22 CIV. 6348 (AKH),2022 WL 17069810
, at *3 (S.D.N.Y. Nov. 17, 2022) (“The FID itself represents a particular individual.”); Lebakken v. WebMD LLC, No. 1:22-cv- 00644-TWT,2022 WL 16716151
(N.D. Ga. Nov. 4, 2022)
(“[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.”).
As to which entity collects the information and is
responsible for the disclosure of PII, the complaint alleges
that defendant programmed the USA Today website to include a
Facebook tracking pixel. According to the complaint, the
Facebook tracking pixel is an “invisible” tool that tracks
users’ actions on Facebook advertisers’ websites and reports
that information to Facebook. Facebook then uses that
information to show the user targeted ads.
In its motion to dismiss, Gannett contradicts the alleged
facts, contending that Facebook, not defendant, placed the
tracking pixel on the USA Today website. Such a factual dispute
cannot be resolved on a motion to dismiss at which stage the
Court must treat all non-conclusory factual allegations in the
complaint as true. Ocasio-Hernandez, 640 F.3d at 12
. Plaintiff alleges throughout the complaint that defendant inserted the code into the USA Today website to transmit users’ information to Facebook. Accepting the factual allegations as true and drawing reasonable inferences in the plaintiff’s favor, the Court finds that it is plausible Gannett disclosed PII under the VPPA. Seeid. at 10-11
.
3. “Knowing” Disclosure of PII
Finally, defendant argues that even if plaintiff did
adequately allege that Gannett disclosed PII, he did not
sufficiently allege that Gannett “knowingly” disclosed PII as
required by the VPPA. 18 U.S.C. § 2710
(b)(1). Essentially,
defendant asserts that plaintiff did not allege facts that
Gannett ever knew that users’ information was transmitted to
Facebook.
Such assertions are, however, plainly contradicted by the
complaint which alleges that
defendant chose, programmed, and intended for Facebook
to receive the video content name, its URL, and, most
notably, the digital subscriber’s FID [and that]
defendant knew that the Facebook pixel disclosed
Personal Viewing Information to Facebook.
As discussed above, at the motion to dismiss stage, the Court
accepts the factual allegations in the complaint as true.
Ocasio-Hernandez, 640 F.3d at 10
. Therefore, the Court finds
that plaintiff has plausibly pled that Gannett’s disclosure of
users’ PII was made knowingly.
In conclusion, at this early juncture plaintiff plausibly
pleads a violation of the VPPA’s prohibition on disclosure of
PII. See Yershov, 820 F.3d at 489-90
(“We need simply hold, and
do hold, only that the transaction described in the complaint——
whereby [plaintiff] used the mobile device application that
Gannett provided to him, which gave Gannett . . . his device
identifier, and the titles of the videos he viewed in return for
access to Gannett’s video content——plausibly pleads a case that
the VPPA's prohibition on disclosure applies.”).
ORDER
For the foregoing reasons, defendant’s motion to dismiss
(Docket No. 21) is DENIED.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated December 20, 2022