Opposition Brief — Detrina Solomon, Petitioner v. Flipps Media, Inc., dba FITE, dba FITE TV

No. 25-228

IN THE

Supreme Court of the United States

DETRINA SOLOMON,

Petitioner,

v.

FLIPPS MEDIA, INC., DBA FITE, DBA FITE TV,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

BRIEF IN OPPOSITION

DAVID N. CINOTTI

BRENDAN M. WALSH

PASHMAN STEIN

WALDER

HAYDEN, P.C.

21 Main Street, Suite 200

Hackensack, NJ 07601

TRACI L. LOVITT

Counsel of Record

RAJEEV MUTTREJA

JONES DAY

250 Vesey Street

New York, NY 10281

(212) 326-7830

tlovitt@jonesday.com

SOPHIA CHUA-RUBENFELD

BRAVO*

JONES DAY

1221 Peachtree Street

Atlanta, GA 30361

*Not admitted to practice

in Georgia

Counsel for Respondent

i

QUESTION PRESENTED

The Video Privacy Protection Act of 1988 (“VPPA”)

prohibits a “video tape service provider” from

“knowingly disclos[ing], to any person, personally

identifiable information concerning any consumer of

such provider.” 18 U.S.C. § 2710(b)(1). The term

“personally identifiable information” “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).

The question presented is whether the

transmission of computer code, which conveys in

programming syntax a video title and a string of

numbers that potentially can be used to look up a

Facebook profile, is a disclosure of “personally

identifiable information” under the VPPA.

ii

RULE 29.6 STATEMENT

Respondent Flipps Media, Inc. dba FITE, dba

FITE TV is a wholly owned subsidiary of Triller Hold

Co. LLC. No publicly held corporation owns 10% or

more of Respondent’s stock.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED..........................................i

RULE 29.6 STATEMENT ......................................... ii

TABLE OF AUTHORITIES....................................... v

INTRODUCTION ....................................................... 1

STATEMENT OF THE CASE ................................... 5

A.

Legal Background ................................. 5

B.

Factual Background.............................. 6

C.

Procedural Background ........................ 7

REASONS FOR DENYING THE PETITION ......... 11

I.

There Is No Circuit Split ............................... 11

II.

This Case Has Multiple, Fatal Vehicle

Problems ........................................................ 18

A.

Petitioner Failed To Appeal The

District Court’s Alternative

Ground For Dismissal......................... 19

B.

Petitioner Failed To Allege That

Her PII Was Disclosed And Thus

Failed To Plead An Article III

Injury In Fact. ..................................... 21

C.

Pixel Is A Poor Context For

Deciding The Question

Presented............................................. 24

D.

The Court Should Wait And

Determine The More

Fundamental Question Of

Whether The VPPA Applies To

Online Videos At All. .......................... 27

iv

III.

The Question Presented Is Not

Sufficiently Important To Warrant The

Court’s Review. .............................................. 28

IV.

The Decision Below Is Correct. ..................... 30

V.

There Is No Need To Hold This Case

For Salazar. ................................................... 33

CONCLUSION ......................................................... 35

APPENDIX A: Excerpts from Appellant’s Brief

(Dec. 22, 2023) ......................................................... 1a

APPENDIX B: Excerpts from Appellee’s Brief

(Jan. 26, 2024) ....................................................... 11a

APPENDIX C: Excerpts from Motion to

Dismiss (Dec. 23, 2022) ......................................... 20a

APPENDIX D: Excerpts from Opposition to

Motion to Dismiss (Jan. 24, 2023) ........................ 25a

v

TABLE OF AUTHORITIES

Page(s)

CASES

Dep’t of Educ. v. Brown,

600 U.S. 551 (2023) .............................................. 24

Eichenberger v. ESPN, Inc.,

876 F.3d 979 (9th Cir. 2017) .................... 13, 17, 27

Ghanaat v. Numerade Labs, Inc.,

689 F. Supp. 3d 714 (N.D. Cal. 2023) .................. 26

Goldlawr, Inc. v. Heiman,

369 U.S. 463 (1962) .............................................. 20

Heller v. Quovadx, Inc.,

245 F. App’x 839 (10th Cir. 2007)

(unpublished opinion) .......................................... 21

In re Nickelodeon Consumer Privacy

Litigation,

827 F.3d 262 (3d Cir. 2016) ............... 12, 16, 17, 27

......................................................... 30, 33

Jackson v. Fandom, Inc.,

2023 WL 4670285 (N.D. Cal. July 20,

2023) ..................................................................... 26

Joseph v. IGN Ent., Inc.,

2025 WL 2597913 (D. Mass. July 10,

2025) ..................................................................... 16

vi

Lakes v. Ubisoft, Inc.,

777 F. Supp. 3d 1047 (N.D. Cal.

2025) ..................................................................... 29

Lewis v. Cont’l Bank Corp.,

494 U.S. 472 (1990) .............................................. 20

Louth v. NFL Enters. LLC,

2022 WL 4130866 (D.R.I. Sept. 12,

2022) ..................................................................... 16

National Basketball Association v.

Salazar,

No. 24-994 ................................................ 24, 33–35

Pileggi v. Washington Newspaper Publ’g

Co.,

146 F.4th 1219 (D.C. Cir. 2025)..................... 28, 33

Rowland v. California Men’s Colony,

506 U.S. 194 (1993) .............................................. 30

Saunders v. Hearst Television, Inc.,

711 F. Supp. 3d 24 (D. Mass. 2024) ..................... 15

Simon v. Eastern Ky. Welfare Rights

Organization,

426 U.S. 26 (1976) ................................................ 22

Smith v. Trinity Broad. of Texas, Inc.,

2024 WL 4394557 (C.D. Cal. Sept.

27, 2024) ............................................................... 26

vii

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) .................................. 21, 22–34

Stewart v. IHT Ins. Agency Grp., LLC,

990 F.3d 455 (6th Cir. 2021) ................................ 21

Texas v. Hopwood,

518 U.S. 1033 (1996) ............................................ 21

Therrien v. Hearst Television, Inc.,

2025 WL 1208535 (D. Mass. Apr. 25,

2025) ..................................................................... 15

Warth v. Seldin,

422 U.S. 490 (1975) .............................................. 21

Wilson v. Triller, Inc.,

598 F. Supp. 3d 82 (S.D.N.Y. 2022) ............... 24, 32

Yershov v. Gannett Satellite Info.

Network, Inc.,

820 F.3d 482 (1st Cir. 2016) ............... 3, 13, 15, 17,

.................................. 18, 27, 30

STATUTES

18 U.S.C. § 2710 ............................................. 1, 2, 5, 6,

........................... 12, 19, 29-33

OTHER AUTHORITIES

$8M Viki Privacy Class Action

Settlement, TOP CLASS ACTIONS

(July 23, 2025) ...................................................... 29

viii

R. Joe & L. O’Reilly, A Blockbuster-Era

Video Law Is Being Used to Ding

Big-Name Brands Like General

Mills, Geico, and Chick-Fil-A With

Privacy Lawsuits, BUS. INSIDER

(Sept. 7, 2023) ...................................................... 29

INTRODUCTION

This case concerns the VPPA—a 1988 statute

passed after Robert Bork’s video rental history was

publicly disclosed. The VPPA protects the privacy of

consumers who rent or purchase “prerecorded video

cassette tapes” and “similar audio visual materials.”

18 U.S.C. § 2710(a)(4). Under the VPPA, a “video

tape service provider” cannot knowingly disclose its

customer’s “personally identifiable information.” Id.

§ 2710(b)(1).

The term “personally identifiable

information” “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).

The VPPA has generated “extensive” class action

litigation in recent years. Pet. App. 5a. Internet

users (like Petitioner) have sought damages under

the VPPA, claiming that information revealing their

identities and their viewed content was wrongly

disclosed to technology companies that generate

targeted Internet advertisements.

Respondent Flipps Media, Inc. is a digital

streaming company that provides subscribers an

array of live and prerecorded sports, entertainment,

and music-video content, including live broadcasts of

wrestling, martial arts, and other combat sporting

events.

Petitioner Detrina Solomon filed a putative class

action alleging that Respondent’s use of “Pixel,” an

advertising technology developed by Facebook, Inc.,

violates the VPPA. See Pet. App. 29a. Petitioner

alleged that when a subscriber accessed a video on

Respondent’s website, Pixel would transmit

2

computer code to Facebook containing (i) a string of

numbers that could be used to look up the

subscriber’s Facebook profile and (ii) the title and

URL of the viewed content. Id. at 30a. Petitioner

claimed that those transmissions were knowing

disclosures of “personally identifiable information” in

violation of the VPPA. 18 U.S.C. § 2710(b)(1).

The U.S. District Court for the Eastern District of

New York dismissed Petitioner’s VPPA claim on two

independent grounds. The court held, first, that

Petitioner failed to plausibly allege that Respondent

disclosed her “personally identifiable information,”

Pet. App. 32a–35a, and, second, that Petitioner failed

to plausibly allege that she accessed prerecorded

videos (as opposed to live broadcasts), Pet. App. 35a–

39a; see 18 U.S.C. § 2710(a)(4).

The U.S. Court of Appeals for the Second Circuit

affirmed. The Second Circuit agreed that Petitioner

failed to plausibly allege that Respondent disclosed

her personally identifiable information. Notably,

Petitioner did not appeal—and the Second Circuit

did not disturb—the district court’s alternative

holding that Petitioner failed to plausibly allege that

she accessed prerecorded videos. Pet. App. 3a & n.4;

Brief in Opposition (“BIO”) App. 2a, 4a, 7a–9a & n.3.

Instead, Petitioner appealed the district court’s

denial of leave to amend to add the required

allegations, which the Second Circuit affirmed. Pet.

App. 3a.

Petitioner now seeks certiorari on the question

whether Respondent disclosed her “personally

identifiable information” and claims the circuits are

divided over the meaning of “personally identifiable

3

information.” The Court should deny the petition for

several reasons.

At the outset, the claimed split is illusory, indeed

is merely semantic. Petitioner concedes that the

Second Circuit’s interpretation of “personally

identifiable information” is consistent with the Third

and Ninth Circuits’ interpretation: all three courts

ask whether an “ordinary person” could use the

disclosed information to identify the viewer. See Pet.

12; Pet. App. 19a. According to Petitioner, the First

Circuit has adopted a different interpretation that

focuses on foreseeability—but in reality, the First

Circuit looks to whether “most people” could use the

information to identify the viewer.

Yershov v.

Gannett Satellite Info. Network, Inc., 820 F.3d 482,

486 (1st Cir. 2016).

There is no meaningful

distinction between the “ordinary person” and “most

people” tests—both seek to determine whether the

average person could use the information to identify

the content’s viewer.

The different outcome in the First Circuit’s VPPA

case is entirely explained by the facts in that case,

not the court’s legal test. The courts of appeals

uniformly agree that whether a disclosure includes

“personally identifiable information” is a highly factbound inquiry. In the supposedly conflicting First

Circuit decision, the viewer’s location was

disclosed—a disclosure the court viewed as akin to

an address disclosure. No other circuit court in the

illusory split has considered that fact pattern. Thus,

the Third and Ninth Circuit expressly disclaimed

any conflict with the First Circuit.

4

Separately, the petition suffers a fatal procedural

defect, because Petitioner has not sought review of

the district court’s alternative ground for dismissal

(that she did not adequately allege viewing a

prerecorded video). Indeed, Petitioner cannot seek

review of this holding because she has waived any

challenge to it twice over—first on appeal and then

in the petition. Nor has Petitioner sought further

review of the district court’s and Second Circuit’s

rulings regarding leave to amend.

As a result, even if Petitioner were to prevail in

this Court, the judgment below would stand.

Petitioner’s complaint would remain dismissed for

failure to plausibly allege that she viewed

prerecorded videos. That alone should foreclose this

Court’s review.

There are other vehicle problems, too. Petitioner

failed to allege that she—as opposed to other

unnamed class members—suffered an Article III

injury in fact. See Pet. App. 26a n.15 (declining to

reach this argument).

In addition, the factual

context here—namely, the Pixel technology—is a

poor one for deciding the question presented because

of how the technology works; even Petitioner admits

Pixel makes the legal analysis “confusing.” Pet. 17.

And, the petition does not present a key preliminary

question that could obviate the need for this Court’s

review—namely, whether the VPPA applies to online

videos at all.

The question presented is also of dwindling

importance. Online video providers have responded

to the onslaught of VPPA class actions with consent

forms that

satisfy

the

VPPA’s

disclosure

5

requirements. Because the VPPA has a two-year

statute of limitations, see 18 U.S.C. § 2710(c)(3), this

kind of litigation should end soon.

Finally, the decision below is correct. The Second

Circuit’s test tracks the statutory text and the

VPPA’s history.

The petition should accordingly be denied.

STATEMENT OF THE CASE

A. Legal Background

1. In 1987, a newspaper article identified 146 films

that Supreme Court nominee Robert Bork and his

family had rented from a local video store. In

response, Congress enacted the VPPA to protect the

privacy of consumers who rented or purchased

“prerecorded video cassette tapes” and “similar audio

visual materials.” 18 U.S.C. § 2710(a)(4).

2. The VPPA generally prohibits a “video tape

service provider” from “knowingly disclos[ing], to any

person,

personally

identifiable

information

concerning any consumer of such provider” without

the consumer’s consent. Id. § 2710(b)(1). A “video

tape service provider” includes “any person, engaged

in the business, in or affecting interstate or foreign

commerce, of rental, sale, or delivery of prerecorded

video cassette tapes or similar audio visual

materials.” Id. § 2710(a)(4). The statute defines

“personally identifiable information” (“PII”) to

“include[] 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). For each improper PII disclosure, the

VPPA authorizes damages “not less” than “$2,500.”

Id. § 2710(c)(2)(A).

6

The VPPA permits PII disclosures with the

“written consent (including through an electronic

means using the Internet) of the consumer,” so long

as consent is obtained “in a form distinct and

separate from any form setting forth other legal or

financial obligations of the consumer.”

Id.

§ 2710(b)(2)(B). The VPPA has a two-year statute of

limitations. Id. § 2710(c)(3).

B. Factual Background

1. Respondent is a digital streaming company that

provides subscribers an array of live and prerecorded

sports, entertainment, and music-video content. Pet.

App. 29a–30a. Subscribers can access 1000+ live

broadcasts per year, including wrestling, martial

arts, and other combat sporting events. Id. at 53a

¶ 34.

2. Petitioner alleges that she has a paid

subscription to Respondent’s website, from which she

purportedly streamed unspecified content at some

point within two years of filing her complaint. Id. at

48a ¶ 12.

Petitioner further alleges that

Respondent’s website uses Pixel, a technology

developed by Facebook, Inc. Id. at 55a–60a ¶¶ 42–

57. Pixel is a string of computer code that causes

information about a user’s interactions with a

website, along with that user’s Facebook ID (“FID”),

to be sent to Facebook. Id. at 47a ¶¶ 5–6. 1 A FID is

1 Notably, the Complaint is vague about how exactly Pixel

causes information to be sent to Facebook. For instance, the

Complaint alleges that the information is sent to Facebook via

“cookies,” Pet. App. 59a ¶ 55, which are “small text file[s] . . .

created and placed by Facebook on the Facebook users’

browsers,” id. at 7a. So the Complaint suggests that Pixel

triggers the user’s web browser (e.g., Google Chrome or

7

a unique string of numbers that can be used to look

up a user’s Facebook profile. Id. at 47a ¶ 7.

Facebook profiles vary significantly, as each

Facebook user chooses what (if any) personal

information to include. See id. at 33a–35a.

3. According to Petitioner, website operators use

Pixel for targeted advertising. Id. at 47a ¶ 5.

Petitioner concedes that data sharing is “common

online,” and that “nearly half of [all] retail websites

share data with social-media platforms.” Pet. 8.

(citation omitted). Petitioner further states that

“there is nothing wrong with this,” so long as

“website operators get their users’ consent.” Id.

C. Procedural Background

1. Petitioner filed a putative class action in federal

district court, alleging Respondent disclosed PII to

Facebook in violation of the VPPA. See Pet. App.

29a–30a. Petitioner alleged that every time a user

accessed content on Respondent’s website, Pixel sent

Facebook a block of computer code that

communicated (i) the title and URL of the viewed

material and (ii) the user’s FID. Id. at 60a ¶¶ 57–58.

The complaint included an “exemplar screenshot

excerpt” of a Pixel transmission, with highlighting

and annotations by Petitioner. Id. at 60a ¶ 57. The

“exemplar excerpt” transmission consists of letters,

numbers, symbols, and other programming syntax

surrounding and interspersed among the alleged PII:

Microsoft Edge) to send information to Facebook—which, as

Respondent argued in the court below, further attenuates the

allegation that Respondent itself disclosed any information to

Facebook. See BIO App. 12a, 16a–19a.

8

According to Petitioner, the highlighted text in Box A

conveys the title and URL of a video, and the

numbers following “c_user=” in Box B convey a user’s

FID. Id. at 60a ¶ 58.

Petitioner further alleged that the FID can be used

to look up a user’s Facebook profile. The complaint

included an “exemplar” screenshot of Mark

Zuckerberg’s Facebook profile, which displays his full

name and photograph. Id. at 62a ¶ 63. But the

complaint alleged nothing about what, if any, PII

was displayed on Petitioner’s own Facebook profile.

Id. at 33a.

Petitioner concedes that Respondent obtained

Petitioner’s “general consent” to “automatically

record information that your device sends” and “use

this information for advertising and other marketing

purposes.” Pet. 9 (citation omitted). However,

Petitioner alleged that Respondent did not obtain her

consent specifically for its Pixel use. See Pet. App.

56a ¶ 49; id. at 68a ¶ 79.

2. Respondent moved to dismiss the complaint.

Among other things, Respondent argued that: (i) the

computer code at issue would be unintelligible to an

ordinary person; (ii) the complaint failed to allege

9

that Petitioner’s own Facebook profile could be used

to identify her personally; and (iii) Petitioner never

specified whether she used Respondent’s website to

watch prerecorded videos or live broadcasts. BIO

App. 20a–24a.

3. The district court dismissed Petitioner’s

complaint with prejudice, holding that the VPPA

claim failed on two independent grounds. First, the

district court held that Petitioner had not plausibly

alleged a PII disclosure. In the court’s view, PII had

to be identifiable to an “ordinary person,” and

Petitioner failed to plausibly allege that an “ordinary

person” could identify her from the transmitted data.

Pet. App. 32a–35a. The district court found that

Petitioner “needed to allege that her public Facebook

profile page contained identifying information about

her in order to state a plausible claim,” and she had

failed to do so. Id. at 35a.

Second, the district court held that Petitioner’s

VPPA claim failed because she had not “plausibly

allege[d] that she accessed any ‘prerecorded’ video.”

Id. at 36a. The district court reasoned that the

VPPA “is inapplicable to ‘live’ video.” Id. Petitioner

alleged only that she viewed “video content” on

Respondent’s website, without specifying whether

the content was live or prerecorded. Id. at 70a ¶ 87.

The district court found Petitioner’s allegations

“insufficient—particularly given the preference of

many viewers to watch sporting events ‘live.’” Id. at

39a.

Finally, the district court denied Petitioner leave

to amend her complaint. The court explained that

Petitioner “had multiple opportunities to propose

10

amendments that would address the content of her

public Facebook profile page and any prerecorded

video she accessed,” but had “simply elected not to do

so.” Id. at 42a.

4. Petitioner raised two arguments on appeal.

First, Petitioner argued that the district court

misconstrued the VPPA’s statutory definition of PII,

although she “did not advocate for a particular

standard on this issue” before the district court. BIO

App. 5a. Petitioner principally urged the Second

Circuit to break from its sister circuits and adopt a

novel PII definition of her own creation. Id. at 3a,

5a–6a. Petitioner also argued that she plausibly

alleged a PII disclosure under any articulated

standard. Id. at 3a. Second, Petitioner argued that

the district court abused its discretion by denying

her leave to amend her complaint. Id. at 4a, 7a.

Petitioner did not appeal the district court’s

alternative holding that her VPPA claim failed

because she had not adequately alleged that she

watched prerecorded videos. Id. at 2a, 4a, 7a–9a &

n.3. Instead, Petitioner stated that she was “ready

and willing” to make such an allegation if given leave

to amend. Id. at 9a.

5. The Second Circuit affirmed. The court held

that the term “‘personally identifiable information’

encompasses information that would allow an

ordinary person to identify a consumer’s videowatching habits, but not information that only a

sophisticated technology company could use to do so.”

Pet. App. 20a. The court further held that—without

Petitioner’s highlighting and annotations—it was

“implausible” that an ordinary person would

11

understand the Pixel transmission to convey a video

title and FID. Id. at 24a–25a. Therefore, the court

concluded that Petitioner failed to plausibly allege

that Respondent disclosed PII under the VPPA. Id.

at 26a.

In addition, the Second Circuit found “no abuse of

discretion in the district court’s decision to deny

[Petitioner] leave to amend the Complaint.” Id. The

Second Circuit thus did not disturb the district

court’s holding that Petitioner “did not plausibly

allege that she accessed prerecorded videos as

required under the VPPA.” Id. at 3a n.4. The

Second Circuit denied Petitioner’s request for

rehearing en banc. Id. at 43a–44a.

REASONS FOR DENYING THE PETITION

Petitioner urges this Court to grant certiorari to

determine the meaning of “personally identifiable

information” under the VPPA. Petitioner claims that

the Court’s intervention is necessary to resolve a 3-1

circuit split, in which the Second, Third and Ninth

Circuits have interpreted PII in a manner that

supposedly conflicts with the First Circuit’s

interpretation. The split, however, is illusory and

fact-bound; the petition is riddled with vehicle

problems; and the question presented is of dwindling

importance. Accordingly, the Court should deny the

petition.

I.

There Is No Circuit Split.

1. The petition fails first and foremost because the

supposed 3-1 circuit split is illusory. While the First

Circuit, on one hand, and the Second, Third, and

Ninth Circuits, on the other, use different language

to describe the test for PII, the courts’ standards are

12

effectively the same. All agree that disclosure of the

consumer’s name and address is disclosure of PII.

All agree that PII includes information that can be

used to identify a person, even if the information

does not itself identify someone. All agree that the

definition of PII is limited to the kind of information

that “identifies a person as having requested or

obtained specific video materials or services.”

§ 2710(a)(3).

No circuit court, moreover, has purported to

establish a bright-line definition of PII. Rather, all

agree that whether particular information is PII is a

highly fact-specific inquiry. And in conducting that

fact-specific inquiry, all ask—albeit in different

terms—whether the average person could use the

information to identify the video viewer.

2. In In re Nickelodeon Consumer Privacy

Litigation, 827 F.3d 262 (3d Cir. 2016), the Third

Circuit held that an IP address—which is “a number

assigned to each device that is connected to the

Internet,” id. at 281—was not PII.

The court

reasoned that PII “means the kind of information

that would readily permit an ordinary person to

identify a specific individual’s video-watching

behavior.” Id. at 290. But to “an average person, an

IP address . . . would likely be of little help in trying

to identify an actual person,” because linking an IP

address to an actual person typically requires “a

subpoena directed to an Internet service provider.”

Id. at 283. The Third Circuit acknowledged that “our

interpretation of the phrase ‘personally identifiable

information’ has not resulted in a single-sentence

holding capable of mechanistically deciding future

cases.” Id. at 290. “We have not endeavored to craft

13

such a rule, nor do we think, given the rapid pace of

technological change in our digital era, such a rule

would even be advisable.” Id.

The Ninth Circuit and Second Circuit have since

adopted the Third Circuit’s framework.

In

Eichenberger v. ESPN, Inc., 876 F.3d 979 (9th Cir.

2017), the Ninth Circuit held that a Roku device

serial number, without more, was not PII, because

an “ordinary person could not use” a device serial

number “to identify an individual.” Id. at 986.

Citing In re Nickelodeon, the court reasoned that the

serial number would not permit an ordinary person

to narrow down past “a sizable ‘pool’ of possible”

people—that is, all “Roku users.” Id. at 985.

Likewise, in the opinion below, the Second Circuit

held that a block of computer code that allegedly

transmitted a FID and a video title was not PII.

Citing In re Nickelodeon, the court found it

“implausible that an ordinary person would look at

[the computer code] . . . and understand it to be a

video title” and “a person’s FID.” Pet. App. 24a–25a.

3. In the purportedly conflicting authority (which

preceded the three aforementioned decisions),

Yershov, 820 F.3d 482, the First Circuit held that the

disclosure of “Yershov’s unique Android ID” together

with “the GPS coordinates of Yershov’s device at the

time the video was viewed” constituted PII

disclosure. Id. at 485. 2 The First Circuit reasoned

2 Petitioner suggests that Yershov held that a transmission of

computer code can constitute PII. See Pet. 14. But Yershov

held that “most people” can recognize and read GPS

coordinates. 820 F.3d at 486. Yershov did not say the same for

computer code.

14

that locating GPS coordinates on a street map is

simple. Thus, “this disclosure would enable most

people to identify what are likely the home and work

addresses of the viewer.” Id. at 486 (emphasis

added). The court viewed the disclosure as no

different than giving out the viewer’s home and work

addresses—a disclosure that is “reasonably and

foreseeably likely to reveal” the viewer’s identity. Id.

The First Circuit concluded that “[w]hile there is

certainly a point at which the linkage of information

to identity becomes too uncertain, or too dependent

on too much yet-to-be-done, or unforeseeable

detective work, here the linkage, as plausibly

alleged, is both firm and readily foreseeable.” Id.

Like the Third Circuit in In re Nickelodeon, the

First Circuit emphasized the narrow nature of its

decision. The court explained: “Our actual holding,

in the end, need not be quite as broad as our

reasoning suggests.” Id. at 489. “We need simply

hold, and do hold, only that the transaction described

in the complaint—whereby Yershov used the mobile

device application that Gannett provided to him,

which gave Gannett the GPS location of Yershov’s

mobile device at the time he viewed a video, 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.” Id.

4. Petitioner seizes on the First Circuit’s language

that the link between the disclosure and the

customer’s identity was “foreseeable,” id. at 486, to

argue that the court adopted a foreseeability test

that the other circuits subsequently departed from

with their “ordinary person” test. Pet. 13–14. In

15

doing so, Petitioner ignores the First Circuit’s actual

analysis. The link between the disclosed information

and the viewer’s identity was “firm and reasonably

foreseeable” because “most people” could use the

disclosed GPS coordinates “to identify what are

likely the home and work addresses of the viewer.”

Yershov, 820 F.3d at 486 (emphasis added). The

critical factor to the court was the ease with which

the average person could identify the plaintiff from

the disclosed GPS coordinates. Id. Thus, the court

emphasized that its holding was narrow and limited

to the particular facts alleged. Id. at 486, 489. The

First Circuit never endorsed a broad foreseeability

test that would construe PII to sweep in large swaths

of complex information that few people could

understand.

Properly read, the First Circuit’s test is

indistinguishable from the Second, Third and Ninth

Circuit’s test. There is no meaningful difference

between “most people” and an “ordinary person.”

Both tests are trained on whether the average person

could derive the viewer’s identity from the disclosed

information.

Thus, district courts in the First

Circuit interpret Yershov as consistent with the

“ordinary person” test.

See Therrien v. Hearst

Television, Inc., 2025 WL 1208535, at *3 (D. Mass.

Apr. 25, 2025) (disclosure of “the location of a

church” the plaintiff attended “with at least 75 other

congregants” was not PII under Yershov because that

“simple shard of information would not ‘enable most

persons to identify’” the plaintiff); Saunders v. Hearst

Television, Inc., 711 F. Supp. 3d 24, 31 (D. Mass.

2024) (citing both Yershov and In re Nickelodeon and

finding “it was reasonably and foreseeably likely that

16

an ordinary person would be able to both identify the

specific videos that plaintiffs watched and know that

it was likely plaintiffs who watched them”); Louth v.

NFL Enters. LLC, 2022 WL 4130866, at *2 (D.R.I.

Sept. 12, 2022) (finding Yershov’s “reasonably and

foreseeably likely” test satisfied because the

“disclosure would enable most people to identify” the

video viewer). 3

5. The different result in Yershov is entirely

explained by the unique facts in that case, not some

supposedly different legal standard. Yershov is the

only circuit decision involving the disclosure of GPS

coordinates, which are readily understandable and

akin to the disclosure of a physical address. For that

reason, the Third Circuit has recognized that In re

Nickelodeon did not “create a split with our

colleagues in the First Circuit.” In re Nickelodeon,

827 F.3d at 289. The court explained that “in

Yershov, the First Circuit focused on the fact that the

defendant there allegedly disclosed not only what

videos a person watched on his or her smartphone,

but also the GPS coordinates of the phone’s location

at the time the videos were watched.” Id. According

to the Third Circuit, Yershov “merely demonstrates

that GPS coordinates contain more power to identify

a specific person than, in our view, an IP address, a

3 While at least one district court in the First Circuit has

focused more on Yershov’s foreseeability language, see Joseph v.

IGN Ent., Inc., 2025 WL 2597913, at *3 (D. Mass. July 10,

2025) (“Plaintiff plausibly alleges that [defendant] is aware that

[the information recipient] has the capabilities to identify

individual customers.”), that merely suggests that this Court

should wait for the First Circuit to clarify Yershov before

concluding that a circuit split exists.

17

device identifier, or a browser fingerprint.” Id. The

Third Circuit cited Yershov’s acknowledgment that

there comes “a point at which the linkage of

information to identity” becomes too attenuated, and

concluded

that—consistent

with

Yershov—IP

addresses simply fell “on that side of the divide.” Id.

(quoting Yershov, 820 F.3d at 486).

Likewise, the Ninth Circuit stated in Eichenberger

that its decision “does not necessarily conflict with

Yershov.” 876 F.3d at 986. “The First Circuit’s

holding in that case was quite narrow.” Id. The

Ninth Circuit noted that Yershov “relied, in part, on

the nature of GPS location data,” and emphasized

the First Circuit’s assessment that “most people”

could use GPS coordinates to identify someone. Id.

(quoting Yershov, 820 F.3d at 486) (emphasis in

Eichenberger). The court stated that its holding

about Roku device serial numbers fell into Yershov’s

category of cases where “‘the linkage of information

to identity becomes too uncertain’ to trigger liability

under the VPPA.” Id. And the court signaled its

agreement with Yershov that “GPS coordinates”

“may also count” as PII under the VPPA. Id.

In the opinion below, the Second Circuit noted that

both In re Nickelodeon and Eichenberger had

“distinguished” Yershov on its facts and “did not

necessarily conflict with Yershov.” Pet. App. 16a

n.11; 17a n.12.

6. In all events, the Second Circuit’s decision is a

poor vehicle to evaluate any conflict, because (as

every circuit court has recognized) what constitutes

PII is a highly fact-sensitive question.

See

Eichenberger, 876 F.3d at 986; In re Nickelodeon, 827

18

F.3d at 290; Yershov, 820 F.3d at 486; Pet. App. 16a

n.11, 17a n.12. No other court of appeals has

analyzed Pixel and the information it transmits.

Contrary to Petitioner’s assertions, it is far from

clear that Petitioner would prevail in the First

Circuit. The First Circuit could easily view this case

as one where “the linkage of information to identity

becomes too uncertain, or too dependent on too much

yet-to-be-done, or unforeseeable detective work.”

Yershov, 820 F.3d at 486.

*

*

*

In short, there is no conflict among the circuit

courts, only different outcomes driven by different

facts.

This Court’s review is accordingly

unwarranted.

II. This Case Has Multiple, Fatal Vehicle

Problems.

Notwithstanding the illusory split, the Court

should also deny this petition because it is riddled

with vehicle problems. Namely, any opinion of this

Court would be advisory, because Petitioner failed to

appeal an independent ground for her complaint’s

dismissal. In addition, this Court would need to

resolve a fact-bound Article III standing question

before entertaining any merits argument. And, if it

gets to the merits, the Court would have to decide

the question presented in the idiosyncratic context of

Pixel technology. Finally, this petition does not

present a critical preliminary question under the

VPPA—whether it applies to online videos at all—

which could obviate the need for this Court’s review.

19

A. Petitioner Failed To Appeal The District

Court’s

Alternative

Ground

For

Dismissal.

The petition is unfit for this Court’s review

because the Court cannot change the outcome below.

Regardless of how this Court might answer the

question presented, Petitioner’s complaint will be

dismissed given the district court’s alternative

holding, which Petitioner did not appeal nor include

in the question presented.

1. Specifically, the district court dismissed the

complaint on two independent grounds—the

complaint failed to allege a PII disclosure, and it

contained insufficient allegations that Petitioner

viewed prerecorded video content. Pet. App. 32a,

35a, 39a. Under the VPPA, a defendant qualifies as

a “video tape service provider” if the defendant is

“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) (emphases added). The district court

reasoned, citing numerous other federal court

decisions,

that “VPPA claims only apply to

‘prerecorded’ video content and do not cover ‘live’

video content.” Pet. App. 36a (citing cases). Here,

Petitioner alleged that Respondent hosts a “vast

array of live and on-demand video content.” Id. at

46a ¶ 2. Petitioner then alleged that she had

accessed Respondent’s “video content,” without

specifying whether the videos were prerecorded or

live. See id. at 70a ¶ 87. “[G]iven the preference of

many viewers to watch sporting events ‘live,’” the

district court held that Petitioner failed to plausibly

20

allege that she accessed “prerecorded” content. Id. at

39a. 4

2. Petitioner did not appeal the district court’s

holding that the Complaint failed to allege that she

viewed prerecorded videos.

Instead, Petitioner

argued that the district court abused its discretion by

denying her leave to amend to cure the pleading

defect. See BIO App. 2a, 4a, 7a–9a & n.3 (arguing

that Petitioner was “ready and willing” to amend her

complaint). Putting all her eggs in the amendment

basket, Petitioner argued that the Second Circuit

“d[id] not need to reach the issue of whether the

current version of the complaint plausibly alleges

this element of [Petitioner’s] claim.” Id. at 8a n.3.

The Second Circuit affirmed the district court’s

denial of leave to amend. Pet. App. 26a. It thus left

undisturbed the district court’s holding that

Petitioner failed to allege that she viewed

prerecorded videos. Id. at 3a n.4. And Petitioner

does not (and, at this point, cannot) raise either issue

in this Court.

3. The district court’s alternative holding is fatal to

this petition. See Lewis v. Cont’l Bank Corp., 494

U.S. 472, 477 (1990) (holding that Article III denies

federal courts the power “to decide questions that

cannot affect the rights of litigants in the case before

them”) (citation omitted); Goldlawr, Inc. v. Heiman,

369 U.S. 463, 465 n.5 (1962) (dismissing writ of

4 The district court also rejected Petitioner’s argument that all

live-streamed video content is “technically” prerecorded, in the

sense that it is recorded milliseconds before online

transmission. Pet. App. 36a–39a. Petitioner abandoned that

argument on appeal. See BIO App. 2a, 4a, 7a–9a.

21

certiorari as to respondent where the “Court of

Appeals affirmed the dismissal as to [respondent] on

both grounds and the petitioner did not seek

certiorari as to the second and independent ground”);

see also, e.g., Stewart v. IHT Ins. Agency Grp., LLC,

990 F.3d 455, 456 (6th Cir. 2021) (Thapar, J.) (“When

a district court provides two alternative grounds for

its decision, the losing party must challenge each

ground on appeal to change the outcome.”). Any

decision by this Court would be advisory, with no

impact on Petitioner’s rights in this case. Cf. Texas

v. Hopwood, 518 U.S. 1033, 1034 (1996) (opinion of

Ginsburg, J., respecting the denial of certiorari)

(stating that this Court “reviews judgments, not

opinions”) (citation omitted); Heller v. Quovadx, Inc.,

245 F. App’x 839, 841 (10th Cir. 2007) (unpublished

opinion) (Gorsuch, J.) (affirming because appellant

“fail[ed] to appeal the district court’s second,

independent ground” for decision). That alone is

grounds for denying the petition.

B. Petitioner Failed To Allege That Her PII

Was Disclosed And Thus Failed To Plead

An Article III Injury In Fact.

Separately, the Court would need to resolve a factbound Article III standing issue before it could reach

the merits.

1. “Where, as here, a case is at the pleading stage,

the plaintiff must ‘clearly . . . allege facts

demonstrating’ each element” of Article III standing.

Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)

(quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).

Even “named plaintiffs who represent a class must

allege and show that they personally have been

22

injured, not that injury has been suffered by other,

unidentified members of the class to which they

belong.” Id. at 338 n.6 (quoting Simon v. Eastern Ky.

Welfare Rights Organization, 426 U.S. 26, 40 n.20

(1976) (internal quotation marks omitted and

emphasis added)).

2. Here, Petitioner failed to plead that she suffered

an injury in fact. As the district court found,

Petitioner failed to plead that her own PII was

disclosed. Rather, Petitioner alleged that in general,

a FID can be used “to locate, access, and view a

particular user’s Facebook profile,” and that in

general, a Facebook profile page may contain

“detailed and personal information.” Pet. App. 33a.

Petitioner’s “complaint include[d] an exemplar

screenshot of Mark Zuckerberg’s Facebook page,

which includes his name, photographs of him, and

other personal information.” Id. But the “complaint

[did] not say anything about the information or

photos found on [Petitioner’s own] public Facebook

profile page.” Id. In other words, Petitioner never

alleged that her own Facebook profile contained her

real name, photographs, or any other PII—as

opposed to a pseudonym, a photo of a pet, or other

anonymous content. The district court concluded

that Petitioner failed to “allege that her public

Facebook profile page contained identifying

information about her.” Id. at 35a. And the district

court specifically denied Petitioner leave to amend on

this issue, noting that Petitioner had “more than

ample” notice that her complaint “failed to identify

23

what, if any personal information, her Facebook

profile contained.” Id. at 40a. 5

3. On appeal, Petitioner conceded that she had

failed to allege that her Facebook profile contained

even her name, and that she had merely pled “that

Facebook profiles, as a general matter, contain

‘detailed and personal information.’” BIO App. 6a,

8a. Petitioner argued only that the district court

erred by denying her leave to add new allegations

regarding “her public Facebook profile.” Id. at 7a–

9a. But, again, the Second Circuit affirmed the

denial of leave to amend, Pet. App. 26a, and

Petitioner has not sought certiorari on that issue.

Notably, the Second Circuit flagged that the

omission could raise a potential standing problem.

The court cited Spokeo when explaining that

“‘plaintiffs who represent a class must allege and

show that they personally have been injured,’” and it

then noted Respondent’s argument that “the

Complaint fails to allege any harm suffered by

[Petitioner] herself.” Pet. App. 26a n.15 (quoting

Spokeo, 578 U.S. at 338 n.6). The court declined to

decide the issue, given its holding that Petitioner’s

claim failed on the merits. Id. But of course, this

Court has an “obligation” to assure itself of “litigants’

standing under Article III before proceeding to the

5 Petitioner asserts that “there is no dispute here that

[Respondent] disclosed information” that Facebook “could use to

identify [Petitioner] as having watched specific videos,” Pet. 4,

and that “Facebook used this information to identify

[Petitioner] as having watched specific videos,” id. at 9. But

these points are disputed, and the district court found that

Petitioner failed to allege that she had provided Facebook with

any PII.

24

merits of a case.” Dep’t of Educ. v. Brown, 600 U.S.

551, 560 (2023) (internal quotation marks omitted). 6

4. Here, too, this vehicle problem sinks the

petition. When a “complaint alleges what sort of

information could be included on a user’s profile,” but

“contains no allegation as to what information was

actually included on [the plaintiff’s] profile,” the

complaint does not state a VPPA claim regardless of

how one construes the PII definition. Wilson v.

Triller, Inc., 598 F. Supp. 3d 82, 92 (S.D.N.Y. 2022).

In short, Petitioner either lacks standing or her

complaint fails to state a claim due to the pleading

problem.

C. Pixel Is A Poor Context For Deciding

The Question Presented.

The particular technology at issue here—Pixel—

provides a poor factual context to decide the question

presented.

1. When a user watches a video, Pixel causes a

transmission to Facebook of more than “twenty-nine

lines of computer code,” including a “string of

numbers” comprising the user’s FID. Pet. App. at 8a,

24a–25a.

According to Petitioner, “[e]ntering

‘facebook.com/[an individual’s FID]’ into any web

Nor does this standing problem depend on the standing

question presented in National Basketball Association v.

Salazar, No. 24-994. The question in Salazar is whether

Article III requires that a VPPA plaintiff allege that her

information was disclosed to the public, or merely to a thirdparty business. Here, Petitioner cannot satisfy Article III under

either standard, because she has failed to allege that her own

information was disclosed at all. Accordingly, there is no

reason to hold this petition for Salazar. See infra Part V.

6

25

browser provides access to a specific individual’s

Facebook profile.” Id. at 8a–9a.

2. These facts render the question presented

ambiguous.

Is the question whether the

transmission of code amounts to PII disclosure? Or

is the question whether the FID itself is PII? Or is

the question whether the Facebook profile linked to

the FID contains PII? These different framings have

caused courts and litigants to talk past one another

when analyzing Pixel under the VPPA.

Indeed, even the courts below differed on how to

frame the question. The district court’s PII analysis

turned on the contents of Petitioner’s Facebook

profile, not on the difficulty of reading computer

code. See Pet. App. 33a, 35a (concluding that “it

cannot be said that the FID would identify

[Petitioner],” because Petitioner failed “to allege that

her public Facebook profile page contained

identifying information”). By contrast, the Second

Circuit focused solely on the complexity of the

computer code. Id. at 25a. Thus, even Petitioner

concedes that the fact pattern here presents a

“confusing” additional layer involving “encoded

information.” Pet. 17. 7

7 To the extent this Court focuses on whether the transmission

of code amounts to PII disclosure, that also implicates the

question of who is responsible for the transmission. As the

court below explained, Pixel triggers the transmission of

information via a “cookie,” which is a “small text file . . . created

and placed by Facebook on the Facebook users’ browsers.” Pet.

App. 7a (emphasis added). That suggests the user’s own web

browser (e.g., Google Chrome or Microsoft Edge)—not

Respondent’s website, or even Pixel itself—is responsible for

transmitting information to Facebook. This is yet another

26

3. To the extent this Court focuses on whether the

FID or a Facebook profile constitute PII, it would be

wading into an issue dividing the district courts but

undecided by the circuit courts. Some district courts

have held that the FID is PII because “an ordinary

person could readily identify a specific Facebook user

on the basis of a Facebook Profile ID.” Jackson v.

Fandom, Inc., 2023 WL 4670285, at *4 (N.D. Cal.

July 20, 2023) (denying motion to dismiss in Pixel

case under the “ordinary person” test). Others have

held that the “FID can constitute PII,” but only

“where it leads to a Facebook page that discloses

personal and identifying information about the

consumer.” Ghanaat v. Numerade Labs, Inc., 689 F.

Supp. 3d 714, 720 (N.D. Cal. 2023) (granting motion

to dismiss in Pixel case under the “ordinary person”

test). Still others have held that disclosure of the

FID amounts to PII only if the user’s Facebook

profile “includes sufficient identifying information”

and the user has opted to make their Facebook

profile “public” rather than private. Smith v. Trinity

Broad. of Texas, Inc., 2024 WL 4394557, at *3 (C.D.

Cal. Sept. 27, 2024) (granting motion to dismiss in

Pixel case under the “ordinary person” test).

Notably, in each of those three cases, the district

court purported to analyze Pixel under the ordinary

person test—yet each court arrived at a different

result. 8 This divergence confirms that Pixel is a

wrinkle this Court would have to contend with if it takes up the

VPPA question in the Pixel context.

8 Indeed, the briefing below suggests that what Petitioner really

wants is fact-bound error correction under the ordinary person

test. Petitioner claims that she “conceded below” that her claim

fails under the ordinary person test. Pet. 4. But in the district

27

uniquely “confusing” and unhelpful lens through

which to decide this statutory interpretation issue.

Pet. 17. If the Court wishes to determine the

question presented, it should do so in a simpler

factual context. See, e.g., In re Nickelodeon, 827 F.3d

262 (IP address); Eichenberger, 876 F.3d 979 (device

serial number); Yershov, 820 F.3d 482 (GPS

coordinates). At a minimum, the Court should wait

for further appellate VPPA decisions regarding Pixel,

which could shed more light on the question

presented in this unique factual context.

D. The Court Should Wait And Determine

The More Fundamental Question Of

Whether The VPPA Applies To Online

Videos At All.

Separate and apart from the petition’s vehicle

problems, the Court should not grant this petition

because a more fundamental question (which is not

presented here) is currently percolating in the courts

of appeals: whether the VPPA applies to online

videos at all.

1. As Judge Randolph recently explained, the

“VPPA imposes liability on ‘video tape service

provider[s],’ defined as businesses transacting in

court, Petitioner argued that Respondent’s disclosure of her

FID “satisfies the ordinary person test,” and that “[w]hatever

standard the Court applies, [Petitioner’s] allegations satisfy it.”

BIO App. 25a, 28a. Likewise, Petitioner argued on appeal that

Respondent’s “disclosure would readily permit an ordinary

person to identify her.” Id. at 3a. Petitioner now seeks to

distance herself from her previous arguments, in an effort to

persuade this Court that resolution of the purported “split” is

outcome-determinative, but she cannot so easily jettison her

previous positions.

28

‘prerecorded video cassette tapes or similar audio

visual materials.’” Pileggi v. Washington Newspaper

Publ’g Co., 146 F.4th 1219, 1238 (D.C. Cir. 2025)

(Randolph, J., concurring) (emphasis added).

“‘Similar’ cannot mean ‘other,’” and the “VPPA’s use

of ‘similar’ requires something more than a vague

resemblance between the videos at issue . . . and a

‘prerecorded video cassette tape.’” Id. Online videos

“bear little similarity” to physical video cassettes—

both in how they function and how users engage with

them. Id. at 1239. As Judge Randolph concluded,

the “VPPA addressed a different problem in a

different time.”

Id. at 1238. “Technology has

overtaken this federal statute and has rendered it

largely obsolete.” Id. Properly limiting the VPPA to

the outdated technology it concerns “would avoid the

parade of horribles” courts encounter in applying the

VPPA to “websites,” id. at 1239—for example,

interpreting “PII” in the context of Pixel.

2. This issue was neither briefed nor decided in the

proceedings below—but it has the potential to moot

the question presented and all sorts of other thorny

questions about how the VPPA applies to modern

technologies. See id. at 1238 (noting there is “a

straighter path to the same ultimate result”). If the

Court wants to clarify the meaning of the VPPA, it

should do so in a case that presents this more

fundamental issue.

III. The Question Presented Is Not Sufficiently

Important To Warrant The Court’s Review.

In any event, the question presented is of limited

and diminishing significance, because the technology

industry can moot it through consent forms.

29

1. As the Second Circuit observed, “the VPPA has

generated extensive litigation” in “recent years,” as

“numerous class actions have been filed against a

wide variety of entities.” Pet. App. 5a–6a (citing,

e.g., R. Joe & L. O’Reilly, A Blockbuster-Era Video

Law Is Being Used to Ding Big-Name Brands Like

General Mills, Geico, and Chick-Fil-A With Privacy

Lawsuits,

BUS.

INSIDER

(Sept.

7,

2023),

https://perma.cc/DU3K-SQJX).

2. But the VPPA itself provides an easy way to

avoid litigation. It permits PII disclosures so long as

the video content provider obtains the consumer’s

“informed, written consent” in a distinct form. 18

U.S.C. § 2710(b)(2)(B). In response to the slew of

class action suits, online video content providers are

now implementing consent forms that satisfy the

VPPA. See, e.g., $8M Viki Privacy Class Action

Settlement, TOP CLASS ACTIONS (July 23, 2025)

https://tinyurl.com/5yz5hbk3 (reporting that the Viki

streaming service will now seek “consent” under the

VPPA before using web tracking tools). These new

measures have already defeated a recently filed

VPPA claim. See Lakes v. Ubisoft, Inc., 777 F. Supp.

3d 1047, 1059–60 (N.D. Cal. 2025) (dismissing VPPA

claim because the defendant’s website’s “Cookies

Banner, account creation, and checkout consent flow

satisfy all of the requirements of VPPA’s consent

provision”). And because the VPPA has a two-year

statute of limitations, see 18 U.S.C. § 2710(c)(3),

consent forms may soon moot this issue entirely.

Accordingly, the question presented is of rapidly

diminishing importance.

30

IV. The Decision Below Is Correct.

Finally, this Court’s review is unwarranted

because the Second Circuit’s decision is correct. The

“ordinary person” approach follows from both the

VPPA’s statutory text and statutory history.

1. The VPPA provides that “the term ‘personally

identifiable information’ includes information which

identifies a person as having requested or obtained

specific video materials or services from a video tape

service provider.” 18 U.S.C. § 2710(a)(3). The

circuits have described that statutory definition as

“not straightforward,” In re Nickelodeon, 827 F.3d at

284, and “awkward and unclear,” Yershov, 820 F.3d

at 486. But all agree that the statutory definition

encompasses “more than just information that

identifies an individual,” like a name, but also some

“information that can be used to identify an

individual.” Pet. App. 12a.

2. The statutory text supports the general

consensus that PII “encompasses information that

would allow an ordinary person to identify a

consumer’s

video-watching

habits,

but

not

information that only a sophisticated technology

company could use to do so.” Pet. App. 20a; see also

Yershov, 820 F.3d at 486 (PII where the information

“would enable most people to identify” the plaintiff).

In context, the VPPA’s focus on disclosures of PII “to

any person” means disclosures understandable by a

natural person—as opposed to information that only

a sophisticated technology company can decode.

18 U.S.C. § 2710(b)(1); see Rowland v. California

Men’s Colony, 506 U.S. 194, 200–03 (1993)

(explaining that the word “person” does not include

31

artificial entities where “context” indicates that

“Congress was thinking in terms . . . of natural

persons only”).

To start, the VPPA’s use of the terms “personally

identifiable information” and “aggrieved person” are

most naturally read to refer only to natural persons,

i.e., humans who watch video cassettes. 18 U.S.C.

§ 2710(a)(3) (emphasis added) (“the term ‘personally

identifiable information’ includes information which

identifies a person as having requested or obtained

specific video materials or services from a video tape

service provider”); id. § 2710(b)(1) (emphasis added)

(a “video tape service provider who knowingly

discloses” PII “shall be liable to the aggrieved

person”).

To that end, the VPPA explicitly

distinguishes between a “person” and an “entity”—

referring in some instances just to “any person,” and

in other instances to “any person or other entity.”

See id. at § 2710(a)(4) (“video tape service provider”

includes “any person” engaged in the video cassette

business, as well as “any person or other entity” to

whom certain disclosures are made) (emphasis

added). That further indicates that when the VPPA

refers to a “person,” it means natural persons—i.e.,

ordinary persons—only.

Furthermore, the circuits have observed that the

“VPPA imposes liability on a ‘video tape service

provider’ that ‘knowingly discloses’ a consumer’s

information to a third party.” Pet. App. 21a (citing

18 U.S.C. § 2710(b)(1)). “In other words, the statute

views disclosure from the perspective of the

disclosing party.”

Id.

Therefore, a recipientdependent test does not make sense; liability should

not “turn on . . . the level of sophistication of the

32

third party,” a fact that may be outside of the

discloser’s knowledge or control. Id. Similarly, the

VPPA also establishes “requirements regarding the

handling of PII that do not implicate the disclosure

of such information to a recipient” at all—for

instance, an obligation to “destroy [PII] as soon as

practicable.” Wilson, 598 F. Supp. 3d. at 91 (Rakoff,

J.) (quoting 18 U.S.C. § 2710(e)). “It would make

little sense for the scope of PII to be recipientdependent where the conduct at issue does not

involve disclosure to a third-party.” Id. at 91–92.

3. The “ordinary person” approach is also

consistent with the VPPA’s statutory history, which

confirms that Congress did not intend for PII to

include information that only a sophisticated

technology company could understand. When the

statute was first enacted in 1988, the “paradigm”

violation was “a video clerk leaking an individual

customer’s video rental history”—information an

ordinary person could readily understand. Pet. App.

24a. (citation omitted).

Twenty-five years later, in 2013, Congress

amended the VPPA in recognition that “the Internet

had revolutionized the way that American

consumers rent and watch movies and television

programs.” Id. at 22a (citation and bracket omitted).

But Congress “declined to amend the definition of

personally identifiable information, even in the face

of testimony asking for an expansion of the definition

to include IP addresses.” Id. In short, Congress was

expressly invited to expand the statutory definition

to include disclosures that only a sophisticated

33

technology

company

Congress did not do so. 9

could

understand—but

Congress knows how to draft a broad definition of

PII when it wants to. Id. at 23a (contrasting the

VPPA’s definition of PII with the broad definition of

“personal information” in the 1998 Children’s Online

Privacy Protection Act). Thus, as the Second Circuit

reasoned below, the “decision to not amend the VPPA

suggests that Congress believed that the VPPA

‘serves different purposes, and protects different

constituencies, than other, broader privacy laws.’”

Id. (quoting In re Nickelodeon, 827 F.3d at 288).

For all of those reasons, the “ordinary person

standard” is consistent with the statute’s text and

history and properly “informs video service providers

of their obligations under the VPPA.” Id. at 21a

(quoting Eichenberger, 876 F.3d at 985).

V. There Is No Need To Hold This Case For

Salazar.

Finally, there is no need to hold this case for

National Basketball Association v. Salazar, No. 24994—and certainly no basis to “GVR” this case, as

Salazar suggests in his Supplemental Brief. Nothing

In discussing the 2013 amendments, Petitioner asserts that

“the Act explicitly includes all ‘audio visual materials.’” Pet. 5.

That is a misstatement. The VPPA applies only to “prerecorded

video cassette tapes” and “similar audio visual materials.” 18

U.S.C. § 2710(a)(4) (emphases added). Petitioner also asserts

that “there is no question” that the VPPA applies to “online

viewing.” Pet. 5. But that issue is anything but settled. See

Pileggi, 146 F.4th at 1239 (Randolph, J., concurring)

(explaining that the VPPA, by its text, should not apply to

certain “online video” providers at all).

9

34

in this case turns on either question presented in

Salazar.

1. The first question presented in Salazar is

whether a consumer suffers an Article III injury in

fact “when one business discloses his personal

information to another,” or if instead Article III

requires a disclosure “to the public.” Salazar, No.

24-994, Pet. 1. To start, there is no world in which

resolution of that question can change the outcome of

this case.

The courts below assumed without

deciding that Petitioner had Article III standing, and

she lost on the merits. Moreover, as explained in

Section II.B above, Petitioner has failed to plead an

Article III injury in fact under either standard,

because she failed to plead that her own personal

information was disclosed—to a business, to the

public, or to anyone else. See Spokeo, 578 U.S at 338

n.6 (holding that “plaintiffs who represent a class

must allege and show that they personally have been

injured, not that injury has been suffered by other,

unidentified members of the class to which they

belong” (emphasis added)). So there is no reason to

hold this petition pending the Court’s consideration

of Salazar’s first question presented.

2. The second question presented in Salazar is

whether the VPPA’s definition of “consumer” extends

to a plaintiff who subscribes only to a defendant’s

“free email newsletter,” rather than to the

defendant’s “audiovisual goods and services.”

Salazar, No. 24-994, Pet. 25. That fact pattern is

irrelevant to this case: Here, Petitioner alleged that

she had a “paid subscription” to Respondent’s “digital

video streaming service,” which is an audiovisual

service. Pet. App. 70a ¶ 86; id. at 48a ¶ 12. So

35

nothing in this case turns on Salazar’s second

question presented, either.

Therefore, the Court should deny this petition

without delay, regardless of its disposition of

Salazar.

CONCLUSION

The petition for a writ of certiorari should be

denied.

October 27, 2025

Respectfully submitted,

DAVID N. CINOTTI

BRENDAN M. WALSH

PASHMAN STEIN

WALDER

HAYDEN, P.C.

21 Main Street, Suite 200

Hackensack, NJ 07601

TRACI L. LOVITT

Counsel of Record

RAJEEV MUTTREJA

JONES DAY

250 Vesey Street

New York, NY 10281

(212) 326-7830

tlovitt@jonesday.com

SOPHIA CHUA-RUBENFELD

BRAVO*

JONES DAY

1221 Peachtree Street NE

Atlanta, GA 30361

*Not admitted to practice

in Georgia

Counsel for Respondent