Whether information identifying a person's video viewing history to a specific recipient constitutes 'personally identifiable information' under the Video Privacy Protection Act even if an 'ordinary person' would not understand the disclosure

The Video Privacy Protection Act (“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 statute defines “consumer” to include a “subscriber of goods or services from a video tape service provider.” Id. § 2710(a)(1). It 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 National Football League (“NFL”) is a “video tape service provider.” It has never argued otherwise. Brandon Hughes is the NFL’s “consumer” because he subscribed to the league’s online newsletter and to NFL+, a premium video-streaming service. After Mr. Hughes watched videos on NFL.com, the NFL disclosed his videowatching history to Facebook. Facebook understood the disclosed information to identify Mr. Hughes as having requested or obtained those videos. The NFL knew Facebook would understand the disclosed information that way. The Second Circuit dismissed Mr. Hughes’s VPPA claim, however, because an “ordinary person” would not also have understood the disclosed information. The question is whether information that, to one recipient, “identifies a person as having requested or obtained specific video materials or services from a video tape service provider” counts as “personally identifiable information,” even when a hypothetical “ordinary person” would not understand the information to do so.