Sherhonda Golden v. NBCUniversal Media, LLC

The Video Privacy Protection Act (“VPPA”) prohibits a video tape service provider like NBCUniversal from “knowingly disclos[ing], to any person, personally identifiable information concerning any consumer.” 18 U.S.C. § 2710(b)(1). The statute defines “personally identifiable information” to include information that “identifies a person as having requested or obtained specific video materials or services from a video tape service provider.” Id. § 2710(a)(3). The statutory text does not mention an “ordinary person.” Here, NBCUniversal disclosed information to Facebook. It knew Facebook would understand the information to identify Sherhonda Golden as having requested or obtained specific video materials. And Facebook did understand the disclosed information that way. In the First Circuit, Ms. Golden’s VPPA claim would have survived in light of NBCUniversal’s actual knowledge, without considering what an “ordinary person” might have understood. But the Second Circuit dismissed her claim, despite NBCUniversal’s actual knowledge, because an “ordinary person” would not have understood the disclosed information. The question is whether information is “personally identifiable information” under the VPPA when the provider knows the recipient understands it to identify a person as having requested or obtained specific video materials, even if an “ordinary person” would not.