Whether information can be 'personally identifiable' under the Video Privacy Protection Act if it is 'reasonably foreseeably' identifiable or only if an 'ordinary person' could use it to identify someone's video choices

The Video Privacy Protection Act forbids a “video tape service provider” from disclosing without consent “personally identifiable information,” which the Act defines to “include[] information which identifies a person as having requested or obtained specific video materials or services . . . .” 18 U.S.C. § 2710(a)(3), (b). The question presented is whether information can be “personally identifiable” if it is “reasonably . . . foreseeabl[e]” to the person sending the information that it will be used to identify someone’s video choices, as the First Circuit held in Yershov v. Gannett Satellite Info. Net., Inc., 820 F.3d 482, 486 (1st Cir. 2016), or whether information can be “personally identifiable” only if an “ordinary person” could use it to identify someone’s video choices, as the Second, Third, and Ninth Circuits have held, Pet. App. 19a; In re Nickelodeon Consumer Priv. Litig., 827 F.3d 262, 290 (3d Cir. 2016); Eichenberger v. ESPN, Inc., 876 F.3d 979, 985 (9th Cir. 2017).