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Judge Hints at Dismissal in Hulu Privacy Case

SAN FRANCISCO (CN) - In grappling with online video privacy litigation invoking a decades-old privacy law, U.S. Magistrate Judge Laurel Beeler said at a hearing Thursday that she will likely side with online streaming service Hulu that it did not disclose its users' identities and viewing preferences to Facebook.

"It just doesn't feel like the Bork transmission of personal information," Beeler said, referring to the outing of Judge Robert Bork's video rental history after he was nominated to the U.S. Supreme Court. The incident led to the passage of the Video Protection Privacy Act in 1988, a law stipulating that personally identifiable information [PII] must remain private.

Whether information identifying Facebook users was knowingly transmitted by Hulu to Facebook is the sole remaining claim against the service, which Hulu lawyer Victor Jih called "the chasm as big as the Grand Canyon that they can't cross."

"There is no showing that we knew what Facebook would do with these transmissions and that they would use them to get PII," Jih said. "There's nothing there because that did not enter the consciousness of anyone, and that's what the VPPA requires."

But plaintiff counsel Scott Kamber said one could reasonably infer that Hulu knew that it was conveying users' video viewing habits to Facebook.

"We believe strongly that if this case does not show knowledge in the situation, that one cannot make a reasonable inference of knowledge from documents presented to the court there can never be a VPPA violation in the realm of the Internet," Kamber said. "That may sound bombastic, but I think there is clearly a Judge Bork disclosure here."

Beeler addressed both sides at the start of the hearing on Hulu's motion for summary judgment Thursday. "In the end the knowing standard that Hulu outlines I think is the correct one," she said.

Turning to Kamber, she added: "I'm sorry if this feels like a wake," eliciting a laugh from Kamber.

"As Monty Python said, I'm not dead yet," he said.

Beeler's remark didn't stop the attorney from pressing the argument that Hulu knew full well Facebook was tracking user activity, and that there was a "fundamental understanding" as to how the exchange worked.

"They knew everything about what they were doing," Kamber said.

Hulu installed a Facebook "Like" button on its viewing pages. The plaintiffs, who have not been certified as a class, claim the button transmitted a Facebook user's "c_user" cookie containing his or her Facebook ID along with video watch information.

Jih contended that Hulu had no idea what the cookies meant. "We don't know what it signifies at all," he said.

Kamber countered this argument.

"Hulu knows there's this functionality on the like button that IDs users to Facebook. They know Facebook can ID the user, and ID the videos the user is watching," he said, pointing to a feature on the Hulu watch page that shows the users' Facebook friends who also "liked" a certain video.

"If Facebook can't know what video you're watching, they can't tell you which of your friends liked the video you're watching," he added.

One thing Kamber did seem to have convinced Beeler about was the need for some paranoia.

"I now use three browsers," the judge said, laughing. "I've learned a lot from this case."

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