Judge Tosses|Hulu Privacy Case


     SAN FRANCISCO (CN) – Persuaded by Hulu that its users could not prove that it knowingly shared their private information with Facebook, a federal judge on Tuesday tossed a proposed class action claiming the online streaming service violated the Video Privacy Protection Act.
     U.S. District Judge Laurel Beeler found that ultimately there is no connection between a Hulu users’ identity, sent to Facebook through a “c_user” browser cookie, and the title of the video that person had watched.
     “More precisely, there is no evidence that Hulu knew that Facebook might combine a Facebook user’s identity (contained in the c_user cookie) with the watch-page address to yield ‘personally identifiable information’ under the VPPA,” Beeler wrote. “There is consequently no proof that Hulu knowingly disclosed any user ‘as having requested or obtained specific video materials or services.’ “
     She added that Hulu didn’t actually know that Facebook might connect the two, so “there cannot be a VPPA violation.”
     Whether information identifying Facebook users was knowingly transmitted by Hulu to Facebook was 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.”
     Hulu users claimed that every time they hit the “like” button next to a Hulu video, Hulu would share that information with Facebook, and their Facebook friends would be able to see their video viewing habits when they looked at the same Hulu page.
     The plaintiffs’ lawyers were quick to compare the case to the outing of Judge Robert Bork’s video rental history after he was nominated to the U.S. Supreme Court, the genesis of the VPAA’s passage in 1988.
     But at a February hearing, Beeler told the lawyers, “It just doesn’t feel like the Bork transmission of personal information.”
     Beeler repeated that point in her 22-page ruling granting Hulu’s motion for summary judgment.
     “In that type of case, the connection between a specific user and the material that he ‘requested or obtained’ is obvious. If I hand someone a slip of paper with John Doe’s name above a list of recently rented videotapes, the connection between the two will generally be apparent. This is all the more so because the information is passed between humans in a natural language. The recipient can immediately read the note and see the connection,” Beeler wrote. “This case is different. The user’s identity and that of the video material were transmitted separately (albeit simultaneously). By sending those two items Hulu did not thereby connect them in a manner akin to connecting Judge Bork to his video-rental history.”
     Plaintiff lawyer Scott Kamber of KamberLaw LLC had argued that internal emails indicating that Hulu “knew that vendors can place cookies on the users’s computer” and that Hulu “recognized the VPPA implications of this.”
     Beeler said those emails were “too general” to yield a triable claim.
     “The emails to which the plaintiffs point are not ‘circumstantial’ proof of the specific allegations that remain in play; they are, at best, general contextual evidence of what Hulu knew, and what steps it took, in other areas that also involved user-identifying information,” she wrote.
     The proposed class had also argued that the “show_faces” attribute of the Like button, which can load a users’ friends’ faces on a Hulu video page if the user chooses, proved that Hulu knew what it was doing.
     “More broadly, the plaintiffs urge, ‘we all know’ how these sorts of Internet services work: personal information is constantly shared and connected,” Beeler wrote. “The court agrees that it would take willful ignorance to pretend otherwise.”
     But Beeler said that a jury could not be expected to use that general knowledge to decide Hulu’s legal liability.
     “A jury cannot be allowed to pass on liability based on broad hand waves toward what we all know, what we all expect about how our personal information moves around, and how things generally work in the age of the Internet,” she wrote. “Triable claims must still be rooted in reasonably specific proof about what in fact was done here, what information was sent and connected here, and what Hulu actually knew about these things.”

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