Hulu Says Privacy Claims|Have No Leg to Stand On

SAN FRANCISCO (CN) - Hulu asked a federal judge to take its side in the class action alleging illegal disclosure of viewer data to Facebook and a business-analytics service.

Joseph Garvey is the lead plaintiff in the February 2012 lawsuit claiming that Hulu "repurposed" its browser cache so marketing-analysis services could store users' private data.

While U.S. Magistrate Judge Laurel Beeler gutted the case last June, she deferred ruling on the alleged violation of the federal Video Privacy Protection Act (VPPA), enacted in 1988 after a Washington, D.C., newspaper published the video-rental history of Supreme Court nominee Robert Bork.

A summary judgment hearing is scheduled for Feb. 6, 2014.

Hulu had said the class could not prove injury to establish standing, since that would require a recitation of watched videos, and how third parties received this information.

The VPPA permits disclosure to third parties as an "ordinary course of business," according to Hulu's brief by O'Melveny & Myers attorney Randall Edwards.

It disputes the class's claims that it used the analytics service comScore and Facebook "like" buttons to store user data.

In a motion for summary judgment, the video site argued that, unlike in the Bork case, Hulu did not identify its users by name.

Hulu filed the motion under seal in early October, and the San Francisco court posted a redacted document on Oct. 31.

"Over the past two years, plaintiffs have continuously changed their theories of disclosure, ultimately narrowing them to those presented in their class certification motion: one related to comScore and the other related to Facebook," attorney Robert M. Schwartz wrote in the motion.

"But neither theory involves any knowing disclosure by Hulu of the actual name of a customer, linked to a video title."

With regard to the Facebook "like" button, Hulu claimed there is no evidence that Facebook actually gathered the actual name of users from Hulu or linked identifiers to people's names or the titles of videos they watched.

For comScore, Hulu said there is no evidence that the company "reverse engineered" Hulu users anonymous user IDs to find users names.

"The VPPA does not impose liability on someone who discloses non-identifying information that a third party subsequently manipulates," attorney Schwartz wrote.

"Hulu takes its users' privacy rights seriously and protects them vigorously. Under any reasonable application of the VPPA, the court can and should dispose of this case now." Sustaining the VPPA claim requires the class to prove that Hulu "knowingly disclosed personal identifying information identifying a particular person and the particular video that person requested or watched," Schwartz wrote (italics in original).

The class cannot prove that Hulu disclosed both these elements, the attorney said.

"As a factual matter, plaintiffs' claim requires the court to assume that third parties manipulated the non-identifying user information that Hulu had disclosed," he wrote. "Ultimately, there is no evidence to support their theories."

A jury trial is scheduled for July 28, 2014.

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