Judge Cities Baptiste Ruling in Dismissing VPPA Suit Against Google

Neither the New York Video Consumer Privacy Act (NYVCPA) nor the Minnesota Video Privacy Law (MVPL) contains a private right of action for the violations alleged by plaintiffs in a Video Privacy Protection Act (VPPA) case, said U.S. District Court Judge Yvonne Gonzalez Rogers Monday in an order to dismiss (docket 4:22-cv-05652). She granted Google’s motion to dismiss in U.S. District Court for Northern California in Oakland without leave to amend.

Plaintiffs Burke Minahan in Oakland, Moshe Torczyner in San Jose and David Landfair and Samuel Gershman in San Jose alleged Google violated New York and Minnesota privacy statutes by retaining users’ personally identifiable video rental history on its Google Play, Google TV, Android TV and YouTube platforms. Rogers ruled no such private right of action exists and plaintiffs failed to state a claim.

Plaintiffs, who obtained videos from Google at various points from 2016 to 2022 while residing in New York or Minnesota, alleged Google retained information used to facilitate the video rentals alongside “detailed account[s] of the specific video materials and services [they] each requested or obtained.” Plaintiffs can see their rental history when they open their Google account history, the complaint said.

Plaintiffs argued both the NYVCPA and MVPL contain private rights of action for the unlawful retention of consumers’ personally identifiable video rental history data, and Google’s unlawful retention of their personally identifiable video rental history data enabled them to sue for statutory damages and declaratory or injunctive relief.

Google argued the civil liability provisions of both statutes, and plaintiffs’ rights of action, apply only to the unlawful disclosure of their video rental history data, not retention of it.

The judge cited Baptiste v. Apple, which Google referenced in its reply in support of its motion to dismiss the case last month (see 2304200043. Rogers said in that case, Judge Haywood Gilliam of the U.S. District Court for Northern California, analyzed the construction and language of the statutes, plus the reasoning underlying courts’ “continued refusal to recognize this cause of action” under the VPPA.

Rogers' order outlined Gilliam’s points that (1) lawmakers in New York and Minnesota intended for the scope of the NYVCPA and MVPL private rights of action to address the disclosure of video rental history information only; (2) the 9th U.S. Circuit Court of Appeals said there's no private right of action; (3) plaintiffs’ theory of damages, based solely on retention of personally identifiable video rental data, rather than disclosure, “makes little sense”; and (4) the legislative history of the laws, “like that of the VPPA, does not ‘evince any … intent to create a private right of action’” for the unlawful retention of consumers’ video rental history data. Gilliam’s Baptiste ruling was “persuasive,” Rogers said.