Czarnionka v. The Epoch Times Association, Inc.

Background

Lawrence Czarnionka, individually and on behalf of a proposed class of similarly situated subscribers, sued The Epoch Times Association, Inc. under the federal Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710. The VPPA provides a remedy when a video-service provider knowingly discloses personally identifiable information about a consumer.

The complaint alleged that Epoch Times operates a subscription website where users can view video content. Subscribers provide their names, email addresses, and billing information. Epoch Times allegedly installed a Facebook Pixel on the website. When a subscriber watched a video, the Pixel allegedly sent Facebook the video’s title and URL, along with the subscriber’s Facebook identification number, a unique number linked to the subscriber’s Facebook profile.

Czarnionka alleged that he was a paid Epoch Times subscriber, watched video content through his subscription, and was a Facebook user. He sought injunctive relief and liquidated damages for the alleged VPPA violation. Epoch Times moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that the complaint failed to state a legally sufficient claim.

Legal standard

At the motion-to-dismiss stage, the court accepts the complaint’s factual allegations as true and draws reasonable inferences in the plaintiff’s favor. The complaint must contain enough factual matter to make the claim plausible, rather than merely possible. The court generally considers the complaint, materials attached to or incorporated into it, and matters subject to judicial notice.

Court’s analysis

Personally identifiable information

The VPPA defines personally identifiable information to include information identifying a person as having requested or obtained specific video materials or services. Epoch Times relied on an earlier Southern District of New York decision holding that a device serial number, without more, did not itself identify a particular person and connect that person to a viewing history.

Judge Hellerstein distinguished that decision. He stated that a Facebook identification number is different from an anonymous device identifier because the Facebook identification number itself represents a particular individual. The court therefore held that Czarnionka plausibly alleged that Epoch Times disclosed personally identifiable information.

Disclosure

Epoch Times argued that it did not disclose information because the Facebook Pixel sent information from a user’s browser directly to Facebook and was associated with Facebook’s servers. The court rejected that argument at the pleading stage. The complaint alleged that Epoch Times installed and maintained the Pixel on its website. Accepting those allegations as true, the court concluded that installing the Pixel exposed subscriber information to Facebook and plausibly constituted a disclosure under the VPPA.

Knowing conduct

Epoch Times argued that Czarnionka had not plausibly alleged that the company knew the Facebook identification number existed, knew it was personally identifiable information, or knew that it would be transmitted. The court pointed to allegations that Epoch Times programmed the Pixel into its website knowing that Facebook would receive video titles and subscribers’ Facebook identification numbers when they watched videos. Because the court found that the Facebook identification number itself plausibly constituted personally identifiable information, it concluded that Czarnionka did not need to allege that Epoch Times knew what Facebook might do with the information afterward.

Whether the VPPA covered the videos

Epoch Times argued that the complaint did not specify whether the videos Czarnionka watched were prerecorded, which the statute requires for the relevant type of regulated audiovisual material. The complaint alleged that Epoch Times provided prerecorded video content, including news programs, television shows, documentaries, movies, and other audiovisual content. The court found it reasonable to infer that Czarnionka watched prerecorded content. The court also noted that Epoch Times had not alleged that it offered live broadcast content on its website.

Ruling

Judge Alvin K. Hellerstein denied Epoch Times’s motion to dismiss. The court found that Czarnionka plausibly alleged each challenged element of his VPPA claim: personally identifiable information, a disclosure, knowing conduct, and coverage of the video content by the statute. The court also ordered that the initial case-management conference be held on December 16, 2022, and directed the Clerk to terminate the motion on the docket.