On Monday, October 20, the Eastern District of Missouri dismissed a proposed class action based on the federal Video Privacy Protection Act ("VPPA") against CoStar, the company behind apartments.com. It isn't clear at this point whether the plaintiff will appeal.
CoStar does not dispute that it uses several pixels on apartments.com, including the Meta Pixel. The plaintiff, Banks, alleged that "when he watched videos on apartments.com, CoStar disclosed his information, including which videos he watched on apartments.com, to third parties, though he specifically names only Facebook and TikTok.," thereby "disclosing [his] personal identifying information... to third parties" without his consent, in violation of the VPPA.
The court stated that a successful VPPA claim for failure to obtain consent requires (1) the defendant to be a "video tape service provider", (2) the plaintiff to be a "consumer", and (3) the defendant to have disclosed "personally identifiable information" to third parties. The court found that all three elements were not satisfied, and dismissed, with prejudice, for failure to state a claim under VPPA.
Below is a breakdown of the courts analysis for element (1), and a summary for the court's less-extensive take on elements (2) and (3).
CoStar is not a "video tape service provider" because its business does not involve "prerecorded video cassette tapes or similar audio-visual materials," or even if it did, it is not "in the business... of... deliver[ing]" them.
Not similar: The court stated the only similarity between the video tours at issue in this case and prerecorded cassette tapes is that they are both "audio visual materials." Additionally, "[t]he [VPPA's] statutory context... includes the consistent mention of the noun phrase "video tape," demonstrating "that 'audio visual materials' must be stored in a physical format to be 'similar' to 'prerecorded video cassette tapes.'"
Banks did not argue that CoStar delivered prerecorded video cassette tapes, so the emphasis was on the "similarity" prong. The court looked at the "plain meaning [of words in the definition of video tape service provider] at the time of the VPPA’s enactment," noting the 1981 dictionary definition of "similar" was "having characteristics in common; very much alike; comparable."
Banks's argument relied heavily on recent case law (including Mata v Zillow Grp) from courts in other federal Circuits, which has taken a broad view of VPPA to include websites with "non-video aspects to their business model." The Eastern District of Missouri categorized Mata as "misinterpret[ing] the language of" VPPA, partially because it fully omitted the statutory language of "similar" from its analysis.
Note — The court looked at the "plain meaning [of words in the definition of video tape service provider] at the time of the VPPA’s enactment," noting the 1981 dictionary definition of "similar" was "having characteristics in common; very much alike; comparable," and the 1981 dictionary definition of "business" was "a usual commercial or mercantile activity customarily engaged in as a means of livelihood and typically involving some independence of judgment and power of decision."
Banks is not a "consumer" because, even though he is viewing video tours on a logged-in apartments.com account, he does not have "a subscription to [the defendant's] video services."
The court emphasized the VPPA's protections against disclosure of "rental" and "sale" information to imply a more tangible commercial relationship than simple interaction.
CoStar did not disclose "personally identifiable information" to third parties because Banks failed to allege "anything about" how the Meta Pixel use could identify him, and in any case, PII is "definitionally constrained to 'specific video materials or services... from a video tape service provider,' which... CoStar is not" (see element (1) above).
Hintze Law PLLC is a Chambers-ranked and Legal 500-recognized, boutique law firm that provides counseling exclusively on global privacy, data security, and AI law. Its attorneys and data consultants support technology, ecommerce, advertising, media, retail, healthcare, and mobile companies, organizations, and industry associations in all aspects of privacy, data security, and AI law.
Cameron Cantrell is an Associate at Hintze Law PLLC, counseling companies on global data protection issues, including health (consumer, biotech, genetics), business (CCPA, GDPR), and areas of ongoing federal regulation (HIPAA, GLBA, the DOJ Cross-Border Data Transfers Rule, human subject research).
