Partner Michael P. Canty and Associate Gloria J. Medina are authors of the informative and timely article “New York Federal Courts are Protecting Consumer Privacy” published by the New York Law Journal.

Michael and Gloria examine a series of federal court decisions involving the Video Privacy Protection Act, or VPPA, exploring how a law enacted in 1988 to protect the privacy of individuals’ video tape viewing habits “is no dinosaur statute.”  The authors note that the VPPA is not only relevant in today’s digital age it “still packs a punch, as tracking technologies proliferate and as consumer data grows ever more valuable.”  Recent decisions in the Southern District of New York signal that federal courts remain committed to the privacy interests that the VPPA is meant to protect.

The authors review how “reconciling the VPPA’s literal text with today’s technology has proven challenging for courts nationwide.”  While there is more consensus around defining who qualifies as a “video tape service provider” or a “subscriber,” courts are split on the definitions of who is a “consumer” under the statute and what qualifies as Personally Identifiable Information, or PII.

Michael and Gloria highlight that the question of what qualifies as a consumer under the law “hinges on the nature of ‘goods and services’ and is complex.”  While the Sixth Circuit in Salazar v. Paramount Glob. recently found that a person is a consumer only when subscribed directly to goods and services in the nature of video cassette tapes or audiovisual materials, in Gardner v. Me-TV Nat’l P’ship the Seventh Circuit determined that the definition of a consumer is tied more to whether the defendant is a video tape service provider and not whether the good or service the consumer subscribed to is a video or a stream specifically.  The Supreme Court will soon address this issue.

The authors similarly examine the lingering disagreement between circuit courts as to what qualifies as PII.  As Michael and Gloria note, “this disagreement stems from the difference between what a computer can read and what a normal, ‘ordinary person’ can decipher.”  While some courts consider, for example, a Facebook ID to be PII (as held in Goodman v. Hillsdale Coll. and Gardner), the Second, Third, and Ninth Circuits in In re Nickelodeon Consumer Priv. Litig; Eichenberger v. ESPN, Inc.; and Solomon v. Flipps Media, Inc. hold that “static digital identifiers” were not PII, as they would not allow an ordinary person to identify the user.  The Supreme Court denied certiorari in Solomon in December 2025, leaving the lower court’s interpretation of PII to stand as Second Circuit law.

Even under the limitations of this “ordinary person” standard, two recent Southern District of New York decisions show that “federal courts are protecting consumer privacy where the facts warrant,” and these decisions “offer important guidance on how VPPA claims can survive, providing cautious optimism for plaintiffs navigating this evolving area.”

The authors conclude by identifying several lessons VPPA plaintiffs can take away from these recent decisions and apply to future litigation.  They highlight that VPPA litigation will continue to be relevant in an increasingly digital world, and recent court decisions have preserved space for well-pled VPPA plaintiffs to succeed.