By: Caitlyn Lindstrom

Patreon, a video content subscription platform,[1] challenged the constitutionality of the Video Privacy Protection Act (“VPPA”),[2] which allows consumers to “maintain control over personal information” while generating and accessing video content on providers’ platforms.[3]  The VPPA was born out of concern for consumer privacy regarding media consumption.[4] Following the publishing of then-U.S. Supreme Court nominee Robert Bork’s video rental history in 1988,[5] Congress passed the VPPA to “preserve personal privacy with respect to the rental, purchase, or delivery of videotapes or similar audio-visual materials.”[6]  Under the statute, all videotape service providers may not disclose personally identifiable information (PII) of their consumers unless the provider obtains informed written consent that is a distinct form. The written consent must include a clear and conspicuous opportunity to withdraw such consent.[7]

Since 2022, a class of Patreon users allege that Patreon was sharing users’ video-watching habits and data with Facebook without informing or retaining consent from the users.[8]  Plaintiffs filed a class action against Patreon in the Northern District of California before the U.S. Chief Magistrate Judge Joseph C. Spero, and they argue that Meta’s code, called Facebook Pixel, within Patreon’s website provides Meta automatic access to Patreon’s consumers’ data, bringing about the VPPA violation.[9]  In response, Patreon counters that the VPPA is unconstitutional, deviating from similar companies’ strategies to dismiss the VPPA’s applicability.[10]  Patreon claims the VPPA’s language is too broad to advance a substantial interest in privacy and  imposes significant burdens  “constitutionally protected, non-commercial speech”.[11]  This First Amendment issue remains central to Patreon’s defense, because Judge Spero declined to dismiss the issue in February 2023 due to a lack of a factual record.[12]  With Patreon doubling down on their First Amendment defense the court is faced with defining consumer privacy and electronic consent in a digital age.[13]

On the constitutionality issue, plaintiffs argue that the VPPA promotes consumer privacy while “allowing for the ‘unrestrained flow of ideas’ by permitting a business to obtain users’ consent to sharing their information.”[14]  Plaintiffs received support from the Department of Justice,[15] the American Civil Liberties Union,[16] Electronic Frontier Foundation,[17] as well as various additional advocacy organizations, against Patreon’s Motion for Summary Judgment, arguing that the VPPA protects users’ First Amendment activity and privacy interests and does not interfere with service providers’ First Amendment rights.[18]  Patreon disagrees and claims that the VPPA does not serve a legitimate state interest in user privacy, which fails an intermediate scrutiny review.[19]  Judge Spero implies in his February 2023 opinion that the court is likely to review the First Amendment claim through the framework of the “overbreadth review to determine whether it substantially violates those potential speakers’ rights under the First Amendment.”[20] Data-sharing is a central function of many online companies and an increasing awareness of consumer privacy, so this case can set the framework for future data security litigation. If Patreon prevails in its First Amendment argument, consumers are left vulnerable to their data collection and sharing without their consent.  Patreon’s argument has the potential to piggyback off the Supreme Court’s reasoning in Reno v. ACLU[21], finding that the 1996 Communications Decency Act violated the First Amendment because the Act’s language was too vague and overbroad, as Patreon uses similar language in its briefs.[22]  Conversely, if the class action prevails, consumers and advocates will keep their tool to use against collection and exploitation of PII for company profit.  Advocates for the VPPA believe in its effectiveness to safeguard consumers’ privacy and free expression in an information-sharing age.  Striking down the VPPA’s constitutionality jeopardizes consumers outside the narrow commercial context in which Patreon is challenging.  This contention will have broad implications for future privacy laws and digital rights.

[1] The Story of Patreon, Patreon, https://www.patreon.com/about (last visited Feb, 2, 2024).

[2] 18 U.S.C. § 2710 (1988).

[3] S. Rep. No. 100-599, at 8 (1988), Video Privacy Protection Act of 1988, Pub. L. No. 100-618, 102 Stat. 3195 (codified as amended at 18 U.S.C. § 2710); see Def. Patreon, Inc.’s Notice Mot. and Mot. Dismiss Compl. at 1, Stark v. Patreon, Inc., 656 F. Supp. 3d 1018 (N.D. Cal. 2023) (No. 3:22-cv-03131-JCS).

[4] See S. Rep. No. 100-599, at 2 (stating the purpose of the Act was to “extend privacy protection to records that contain information about individuals.”).

[5] Allison Grande, Patreon Moves to Ax ‘Unconstitutional’ Video Privacy Suit, Law360 (Jan. 22, 2024, 11:54 PM), https://www.law360.com/articles/1788789/patreon-moves-to-ax-unconstitutional-video-privacy-suit.

[6] Video Privacy Protection Act of 1988 § 2710.

[7] 18 U.S.C. § 2710 (b)(2)(B) (requiring videotape providers to obtain informed written consent from a consumer in “a distinct and separate form from other legal or financial obligations” and follow a consumer’s choice for when to provide the form, i.e. in advance or at the time of disclosure).

[8] Christopher Brown, Patron Users Advance Class Suit Over Info Sharing with Facebook, Bloomberg L. (Feb. 21, 2023, 5:20 PM), https://www.bloomberglaw.com/bloomberglawnews/privacy-and-data-security/X90Q2K90000000?bna_news_filter=privacy-and-data-security.

[9] Compl. at 1, Stark v. Patreon, Inc., 656 F. Supp. 3d 1018 (N.D. Cal. 2023) (No. 3:22-cv-03131-JCS).

[10] Allison Grande, Patreon Moves to Ax ‘Unconstitutional’ Video Privacy Suit, Law360 (Jan. 22, 2024, 11:54 PM), https://www.law360.com/articles/1788789/patreon-moves-to-ax-unconstitutional-video-privacy-suit; see generally Braun v. Philadelphia Inquirer, LLC, No. 22-cv-4185-JMY, 2023 WL 7544160 (E.D. Pa. Nov. 13, 2023) (featuring arguments from the Philadelphia Inquirer that their Facebook User ID usage does not constitute a disclosure of PII); Belozerov v. Gannett Co., 646 F. Supp. 3d 310 (D. Mass. 2022) (highlighting USA Today’s claim that Meta collects the PII information, not the video service provider, through Facebook Pixel).

[11] Def. Patreon, Inc.’s Notice Mot. And Mot. Summ. J.  at 1, 16, Stark v. Patreon Inc., 656 F. Supp. 3d 1018 (N.D. Cal. 2023) (No. 3:22-cv-03131-JCS).

[12] Grande, supra note 7.

[13] See Def. Patreon, Inc.’s Notice Motion and Mot. Summ. J. at 25, Stark v. Patreon, Inc., 656 F. Supp. 3d 1018 (N.D. Cal. 2023) (No. 3:22-cv-03131-JCS) (arguing the Court should recognize that other laws adequately protect legitimate consumer privacy interests while the VPPA restricts speech on matters of public concern).

[14] Grande, supra note 7.

[15] Brief for Elec. Frontier Found., et al. as Amici Curiae Supporting Plaintiffs at 2, Stark v. Patreon, Inc., 656 F. Supp. 3d 1018 (N.D. Cal. 2023) (No. 3:22-cv-03131-JCS).

[16] Id.

[17] Id.

[18] Id.; see generally Brief for Dep’t of Just. as Opposition to Def’s Mot for Summ J, Stark v. Patreon, Inc., 656 F. Supp. 3d 1018 (N.D. Cal. 2023) (No. 3:22-cv-03131-JCS) (recognizing VPPA’s applications to non-commercial speech as minimal).

[19] Brief in Support of Motion for Summary Judgment at 19, Stark v. Patreon, Inc., 635 F. Supp. 3d 841 (N.D. Cal 2022) (No. 3:22-cv-03131-JCS).

[20] Stark v. Patreon, Inc., 656 F. Supp. 3d. 1018, 1037 (N.D. Ca. 2023).

[21] Reno v. ACLU, 521 U.S. 844 (1997).

[22] Id. at 883-84. [22] Brief in Support of Motion for Summary Judgment at 19, Stark v. Patreon, Inc., 635 F. Supp. 3d 841 (N.D. Cal 2022) (No. 3:22-cv-03131-JCS).