Class Action Seeks to Halt VPPA Wrongdoing of Night Flight Plus Streaming Service

The Night Flight Plus streaming service, which permits viewers to watch throwback TV shows, music videos and movies from the 1980s, has installed tracking pixels on its website that “secretly and surreptitiously send consumers’ viewing activities” to Meta without their consent, alleged plaintiff Jerry Seguin’s Video Privacy Protection Act class action Wednesday (docket 3:24-cv-01354) in U.S. District Court for Northern California in San Francisco.

The videos that people watch “can often reveal their private politics, religious views, or sexuality -- in other words, their most personal and intimate details,” alleged Seguin’s complaint. Night Flight Plus consumers “expect a movie night in the privacy of their own homes,” it said. They don’t expect to have their viewing activities “recorded and sent to third parties through the use of tracking pixels,” it said. The complaint alleges violations of the California Civil Code Section 1799.3 on behalf of the California class, in addition to the alleged VPPA wrongdoing.

The Meta tracking pixels reside “behind the scenes” of many key Night Flight Plus webpages, “unbeknownst to video viewers,” said the complaint. Meta, in turn, uses the video consumption habits it collects “to build profiles on consumers and deliver targeted advertisements to them, among other activities,” it said.

Night Flight Plus can also be accessed via an app, said the complaint. Discovery may demonstrate that Night Flight Plus also committed violations of the VPPA and Section 1799.3 on its app, it said. Plaintiff Seguin reserves the right “to modify the class definition in response to this information,” it said.

Seguin, an Oakland resident, signed up for the Night Flight Plus subscription video service in October, and continues to maintain a paid subscription to the site, said the complaint. He has visited the Night Flight Plus website on his Safari browser to watch videos, and uses that same web browser to access his facebook.com account, “which exists using his real name,” it said.

Night Flight Plus offers paid monthly or annual subscriptions, which begin with a seven-day free trial, said the complaint. From the moment consumers enter the Night Flight Plus website, the Meta tracking pixel “follows them and records their activity,” it said.

The tracking pixel “watches exactly what consumers request to watch once they enter Night Flight Plus’ library of movies,” said the complaint. The title of every film on Night Flight Plus“is reflected in the URL of the page," it said. Night Flight Plus configured the tracking pixel on its website to create “a PageView event every time a consumer goes to the webpage playing the video," it said. This causes the URL and corresponding webpage activity to be captured by the tracking pixel, “which then transmits the captured activity,” it said.

The VPPA allows only a videotape service provider to disclose the personally identifiable information (PII) of a consumer to a third party with that individual's informed, written consent, said the complaint. Likewise, under Section 1799.3, “a person providing video recording sales or rental services must obtain written consent of the individual whose personal information or records of sales or rental information is being disclosed,” it said. Night Flight Plus “failed to meet the consent requirements” under both statutes, it said.

Seguin intends to use Night Flight Plus again in the future, but he fears that by doing so, the service “will again transmit his PII to Meta without his consent,” said the complaint. He seeks an award of statutory and punitive damages, plus attorneys’ fees and court costs. He also seeks injunctive relief against Night Flight Plus “as pleaded,” or as the court “may deem proper,” it said.