SAN FRANCISCO — A federal appeals court has upheld a win for ESPN Inc. in a lawsuit that accused the company of sharing the personal identities of customers who used the sports network's Roku streaming application with data analytics companies.

Plaintiff Chad Eichenberger, who was represented by lawyers at Edelson PC, claimed ESPN violated the Video Privacy Protection Act, or VPPA, by handing over his Roku device serial number and the identity of the videos he watched to Adobe Analytics, which used the information in combination with other data to build consumer marketing profiles. The federal privacy statute, passed in 1988 in the wake of a newspaper printing U.S. Supreme Court nominee Robert Bork's video rental history, bars “video tape service providers” from knowingly handing over “personally identifiable information” and carries stiff statutory penalties.

But in a 15-page opinion issued Wednesday by the U.S. Court of Appeals for the Ninth Circuit, the court found the data handed over by ESPN didn't qualify as “personally identifiable information” because, on its own, it wouldn't make it apparent to an “ordinary person” who watched what videos.

“As plaintiff concedes, that information cannot identify an individual unless it is combined with other data in Adobe's possession—data that ESPN never disclosed and apparently never even possessed,“ wrote Ninth Circuit Judge Susan Graber. “It is true that today's technology may allow Adobe to identify an individual from the large pool by using other information—as plaintiff alleges. But the advent of the internet did not change the disclosing-party focus of the statute.”

Graber's opinion adopted the “ordinary person” standard previously outlined by the Third Circuit in In re Nickelodeon and upheld a prior ruling by U.S. District Senior Judge Thomas Zilly of the Western District of Washington to dismiss the case.

Her ruling, however, did side with the plaintiff on one important point, finding he had standing to sue under the VPPA. ESPN's lawyers at Munger, Tolles & Olson argued the plaintiff hadn't established “concrete harm” as required to show standing under the Supreme Court decision in Spokeo v Robins. Graber wrote that the VPPA codified “a context-specific extension of the substantive right to privacy.”

“Accordingly, every disclosure of an individual's 'personally identifiable information' and video-viewing history offends the interests that the statute protects,” Graber continued.

Munger's Daniel Collins, who argued the case for ESPN, was out of his office and didn't immediately respond to a voicemail message Wednesday. ESPN representatives didn't immediately respond to a request for comment.

Edelson's J. Aaron Lawson and Roger Perlstadt, likewise, didn't immediately respond to messages.

SAN FRANCISCO — A federal appeals court has upheld a win for ESPN Inc. in a lawsuit that accused the company of sharing the personal identities of customers who used the sports network's Roku streaming application with data analytics companies.

Plaintiff Chad Eichenberger, who was represented by lawyers at Edelson PC, claimed ESPN violated the Video Privacy Protection Act, or VPPA, by handing over his Roku device serial number and the identity of the videos he watched to Adobe Analytics, which used the information in combination with other data to build consumer marketing profiles. The federal privacy statute, passed in 1988 in the wake of a newspaper printing U.S. Supreme Court nominee Robert Bork's video rental history, bars “video tape service providers” from knowingly handing over “personally identifiable information” and carries stiff statutory penalties.

But in a 15-page opinion issued Wednesday by the U.S. Court of Appeals for the Ninth Circuit, the court found the data handed over by ESPN didn't qualify as “personally identifiable information” because, on its own, it wouldn't make it apparent to an “ordinary person” who watched what videos.

“As plaintiff concedes, that information cannot identify an individual unless it is combined with other data in Adobe's possession—data that ESPN never disclosed and apparently never even possessed,“ wrote Ninth Circuit Judge Susan Graber. “It is true that today's technology may allow Adobe to identify an individual from the large pool by using other information—as plaintiff alleges. But the advent of the internet did not change the disclosing-party focus of the statute.”

Graber's opinion adopted the “ordinary person” standard previously outlined by the Third Circuit in In re Nickelodeon and upheld a prior ruling by U.S. District Senior Judge Thomas Zilly of the Western District of Washington to dismiss the case.

Her ruling, however, did side with the plaintiff on one important point, finding he had standing to sue under the VPPA. ESPN's lawyers at Munger, Tolles & Olson argued the plaintiff hadn't established “concrete harm” as required to show standing under the Supreme Court decision in Spokeo v Robins. Graber wrote that the VPPA codified “a context-specific extension of the substantive right to privacy.”

“Accordingly, every disclosure of an individual's 'personally identifiable information' and video-viewing history offends the interests that the statute protects,” Graber continued.

Munger's Daniel Collins, who argued the case for ESPN, was out of his office and didn't immediately respond to a voicemail message Wednesday. ESPN representatives didn't immediately respond to a request for comment.

Edelson's J. Aaron Lawson and Roger Perlstadt, likewise, didn't immediately respond to messages.