Judge Easterbrook "Borks" the Meta Pixel
In a win for consumer privacy, the Seventh Circuit revived a complaint alleging that MeTV's use of the Meta Pixel violates federal law.
Judge Easterbrook’s reputation as a progenitor of succinct and pithy judicial opinions is the stuff of legend. (Anyone recall his takedown of the Bernhard Modern last June?) The latest example is his unanimous majority opinion in Gardner v. Me-TV National Limited Partnership, holding that the federal Video Privacy Protection Act restricts the type of data streaming services may share with advertisers.
The opinion kicks off with a quick summary of the Video Privacy Protection Act (complete with a swipe at Congress):
When Robert Bork’s nomination to the Supreme Court was defeated in 1987, his name became attached not only to a political strategy (“Borking”) but also to a statute, 18 U.S.C. §2710 (the “Bork Act”). This law, more formally called the Video Privacy Protection Act, was the result of bipartisan revulsion against the ease with which reporters discovered what Bork and his family had rented on video tapes. The reporters did not turn up any dirt (Bork and his family watched Hitchcock mysteries, John Hughes comedies, British costume dramas, and spy thrillers) but the ready availability of rental information caused consternation in Congress, some members of which may have had other viewing predilections.
The Video Privacy Protection Act forbids “video tape service providers” from disclosing “personally identifiable information concerning any consumer of such provider” without the consumer’s consent. 18 U.S.C. §2710(b)(1). Relevant here, the Act defines “consumer” as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” §2710(a)(1).
In this proposed class action, the plaintiffs alleged that MeTV violated the Video Privacy Protection Act by sharing consumer information with Facebook. MeTV is a free, ad-supported streaming service that primarily offers classic TV shows. Although users may stream MeTV without an account, the streaming service offers a free account option that enables viewers to personalize their experience by setting TV schedules and receiving newsletters.
According to the complaint, MeTV embeds its online streaming videos with a “Meta Pixel.” The Meta Pixel links a viewer’s MeTV account with the viewer’s Facebook account, assuming both accounts are logged in on the same browser. This arrangement gives Facebook access to users’ viewing history on MeTV, which it then uses to sell targeted ads based on users’ video preferences. This arrangement also facilitates MeTV’s advertising efforts on Facebook.
For what it’s worth, Meta advertises the Meta Pixel as doing more or less what the complaint alleges it does:
The Meta Pixel is a piece of code on your website that can help you better understand the effectiveness of your advertising and the actions people take on your site, like visiting a page or adding an item to their cart. You’ll also be able to see when customers took an action after seeing your ad on Facebook and Instagram, which can help you with retargeting.1
It’s undisputed that MeTV qualifies as a “video tape service provider” under the Video Privacy Protection Act. The issue before the Seventh Circuit was whether MeTV’s accountholders qualify as “consumers” under the Act. Recall that the definition of “consumer” covers “any renter, purchaser, or subscriber of goods or services from a video tape service provider.”
MeTV argued that the plaintiffs were not “consumers” because they subscribed to an information service (TV schedules and newsletters) and not to a video service. The Seventh Circuit rejected this argument, observing that the definition of “consumer” extends, not just to subscribers of video services, but to any “goods or services from a video tape service provider.” Judge Easterbrook explained:
Back to the definition of “consumer”, for a third time: “any renter, purchaser, or subscriber of goods or services from a video tape service provider”. This does not say “subscriber of . . . video services”; it says “subscriber of . . . services from a video tape service provider”. What more is required? . . . Nothing in the Act says that the goods or services must be video tapes or streams.
The Seventh Circuit joins the First, Second, and Eleventh Circuits in holding that the Video Privacy Protection Act applies in this setting.2 For more on this decision, see this write-up by Bloomberg Law. (Or just read the decision; it’s only six pages.)
https://www.facebook.com/business/tools/meta-pixel
Salazar v. Nat’l Basketball Ass’n, 118 F.4th 533, 550-53 (2d Cir. 2024); Yershov v. Gannett Stellite Info. Network, Inc., 820 F.3d 482, 487-89 (1st Cir. 2016); Ellis v. Cartoon Network, Inc., 803 F.3d 1251, 1255-57 (11th Cir. 2015).