(BCN) — On Sunday, Chick-fil-A became the sixth company to be sued in federal court in San Francisco in the last 35 days for alleged violations of an obscure federal statute. All six of the cases were filed by a Virginia resident who asserts that each of the defendants illegally shared his personally identifiable information with Facebook.
Keith Carroll filed each of the six cases as a class action. The defendants in the other five cases are Dave & Buster’s Inc., La-Z Boy Inc., Mattel Inc., The J.M. Smucker Co., and Procter & Gamble Co.
Carroll seeks damages of at least $2,500 for each member of the six classes. The suits were brought under the Video Privacy Protection Act, a largely forgotten federal statute passed in 1988 in response to the public outing of the videocassette viewing records of Supreme Court nominee Robert Bork.
According to a 2018 analysis in the Harvard Law Review, the 146 videotapes Bork rented “revealed nothing salacious. Judge Bork favored Alfred Hitchcock films, spy thrillers and British costume dramas.”
Bork’s confirmation ultimately failed, but bipartisan concern over the privacy issues resulted in passage of the act. At the time of enactment, entertainment technology was very different than today; the Bork tapes were of the sort rented from Blockbuster, and the statute uses language from that era to broadly create liability for any “video tape service provider” who knowingly discloses “personally identifiable information” concerning any customer who subscribes to the provider’s goods or services.
The statute provides that a plaintiff can recover any actual damages, but not less than $2,500, plus punitive damages and attorneys’ fees. With brick-and-mortar video rental stores disappearing since then, the statute was largely moribund until 2009 when lawyers looking for ways to redress invasions of their clients’ privacy started trying to put the act into service in different contexts.
The six class actions in San Francisco are based on the theory that the defendants have shared information about their customers’ video viewing preferences with Facebook, though the videos at issue are a far cry from the full-length movies that Bork rented. In the Smucker suit, the videos are website videos about how to brew coffee. La-Z-Boy’s site has a customer on video recounting her “design story.”
In the Chick-fil-A case, the complaint alleges that Chick-fil-A owns or controls a website at www.evergreenhills.com and whenever someone watches a video on the website, “Defendants secretly report all the details to Facebook: the visitor’s personally identifiable information (“PII”), the titles watched, and more.”
The reason? According to the complaint, it is for “data harvesting and targeted advertising.” The complaint describes the now-familiar fact that Facebook makes money by selling advertising that can be tailored and directed to targeted groups of consumers.
Facebook targets its marketing by collecting data about its users, both from information it gains on the Facebook platform, but also from monitoring “offsite” user activity. According to the complaint, Facebook helps an advertiser reach audiences that have already shown interest in the advertiser’s products by giving the advertiser a tool called the “Facebook Tracking Pixel,” a code that the advertiser can imbed in its website.
Once the tracking pixel is imbedded and activated, it reports data to Facebook about the advertiser’s customers on-site video viewing. Facebook allegedly uses the data to create targeted customer groups, so-called “Custom Audiences,” for the advertiser. The plaintiff alleges that advertisers knowingly disclose information that is sufficient to permit an ordinary person to identify a specific individual’s video viewing behavior, all without the knowledge or consent of consumers who watch the advertiser’s video.
The plaintiff opines that visitors to the Chick-fil-A website would be “shocked and appalled to know that Defendants secretly disclose to Facebook all of the key data regarding a visitor’s viewing habits.”
Chick-fil-A officials were not immediately available to comment on the lawsuit. The other five class action complaints follow the same formulation as the Chick-fil-A complaint. None of the cases is yet far enough along to know how the defendants will respond. The Chick-fil-A website at issue contains several short (2- to 7-minute) animated films about a young girl named Sam.
The film currently on the home page of the website is called The Snow Globe, and it tells the story of how Sam, after discovering the “whimsical wonderland” of Evergreen Hills, learns “of her own unique gifts – including the ability to see something special through an ordinary snow globe.”
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In order to have “standing” to sue in federal court, a plaintiff must have a concrete injury from a defendant’s conduct, so that he or she has “skin in the game.”
The complaint, perhaps anticipating challenges to their client’s standing, alleges that not only is their client is a “customer” of Chick-fil-A but that he also watched one of the Evergreen Hills films on the website and thereby exposed his viewing preferences to Facebook.
He also claims to be a “consumer privacy advocate” and a “tester” who “works to ensure that companies abide by the privacy obligations imposed by federal law.”
The complaint says that Carroll advances “important public interests at the risk of vile personal attacks” and, quoting a prior court opinion, says that he “should be ‘praised rather than vilified.'” Indeed, Carroll describes civil rights icon Rosa Parks as a tester when she refused to give up her seat in the white section on the Montgomery bus. The complaint does not name Facebook as a defendant and it does not allege that Facebook violated the act. Carroll’s lawyer did not respond to a request for comment.
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