Oral Argument Flashcards
What is your introduction
May it please the Court. My name is Laura Lukey, I am here on behalf of Plaintiff Sydney Singer. This case is about preserving the individual right to privacy. The motion before you is Defendant’s motion to dismiss. There are three issues in this motion. First, whether Plaintiff alleged sufficient injury to establish Article III Standing; second, whether Plaintiff is a “subscriber,” and therefore a “consumer” under the Video Privacy Protection Act, 18 U.S.C. § 2710(a)(1); and third, whether the information disclosed by Defendant about Plaintiff is “personally identifiable information” under the Video Privacy Protection Act. You should DENY this motion because:
What is the legal standard here?
So the legal standard is Rule 12(b)(6) which governs the sufficiency of a complaint. Specifically, to survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face
You should deny the motion because (standing)
• Ms. Singer has established Article III standing because the VPPA creates a right to the privacy of an individual’s video watching history, and any wrongful disclosure of that information constitutes an injury sufficient to confer standing. Thus, the Defendant’s disclosure alone is enough to establish Article III standing. Because Defendant disclosed Ms. Singer’s information, she is an aggrieved person that Congress intended to protect through the Act
You should deny the motion because (subscriber)
• Ms. Singer is a “subscriber,” and therefore a “consumer” under the Video Privacy Protection Act because her activity in using Defendant’s application is consistent with the definition of subscriber. Subscribing to something means to show personal membership or contribution. In signing up for a Daikon profile and creating a unique username, Ms. Singer showed membership. In commenting, rating, and uploading videos, Ms. Singer showed contribution. Thus, Ms. Singer’s use of the app is consistent with the definition of subscriber.
you should deny the motion because (PII)
• Finally, the information disclosed by Defendant about Ms. Singer is personally identifiable information because the statutory definition of PII “includes information which can identify a person,” and the disclosure of Ms. Singer’s GPS coordinates, along with her video viewing history could allow a person or entity to identify her.
Why does Ms. Singer have standing?
The VPPA creates a right to the privacy of an individual’s video watching history, and any wrongful disclosure of that information constitutes an injury sufficient to confer standing.
The court in Austin Spearman vs. AMC Entertainment found….
the court found that plaintiff had standing to bring a VPPA claim because plaintiff need only assert that her info was wrongfully disclosed to have asserted an “injury in fact” supporting Article III standing. The court found that Austin-Spearman’s allegations that AMC disclosed her personal information in violation of the VPPA sufficed to establish standing.
But what about specific injury? What injury has she really suffered?
Defendant’s fundamentally underestimates Congress’s ability to confer standing through statutory enactment. It is true, as defendant that Congress “cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.” Nevertheless, while Congress cannot confer standing in the absence of an injury, it can “broaden the injuries that can support constitutional standing,” by “creating legal rights, the invasion of which creates standing,”
Why is Ms. Singer a “subscriber” and therefore a “consumer”
For the issue of whether Ms. Singer is a “subscriber” and therefore a “consumer” under the act, the relevant statutory provision is 18 USC 2710 (a)(1) which says: “The term “consumer” means any renter, purchaser, or subscriber of goods or services from a video tape service provider” Ms. Singer’s use of defendant’s application is consistent with the definition of “subscriber” “one that favors, aids, or supports as by contribution, moral influence, or personal membership.”
The court in Yershov v. Gannett found…
on the issue of subscribership, the court found that Yershov IS a subscriber because, although he did not pay to use the application, payment is not necessary to be considered a subscriber (think of newsletters, podcasts, etc.) They also consider congressional intent. . It seems, the Yershov court thought, that Congress contemplated a broad interpretation of the term “consumer” and if they wanted to limit “consumers” to paid subscribers, they would have said so.
The court in Ellis v. Cartoon Network found…
The Court of Appeals held that plaintiff was NOT a subscriber under the VPPA, HOWEVER, that was, in part, because he did not sign up for, or establish an account with Cartoon network, he only downloaded it. This is distinguishable because Ms. Singer did way more than only download it. Further, the COA agreed that payment is one, but not the only factor to consider when determining whether an individual is a “subscriber” under the VPPA.
Why is this information personally identifiable?
The information disclosed about Ms. Singer is personally identifiable because it idnetifies her as having obtained videos.
Spokeo is distinguishable because…
Doesn’t the fact that Ms. Singer didn’t pay for the app show she’s not a subscriber?
What about the argument that Ms. Singer’s GPS location is constantly changing?
Sure, it is constantly changing, but like any other working adult, she spends the majority of her time at 2 places: work and at home. So, it would not take very long to be able to identify Ms. Singer, or anybody for that matter, if you were given their GPS coordinates. Additionally, SHE PROBABLY USES THE APP MOST WHEN SHE IS AT HOME.
