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Feds Intervene in Patreon’s Challenge to Video Privacy Protection Act

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A motion to intervene filed on Monday by the United States in a case involving the federal Video Privacy Protection Act (VPPA) argued that the statute is constitutional in response to defendant Patreon Inc.’s First Amendment challenge. The suit was brought by Patreon subscribers who alleged that the company illegally shared their personal information, including video viewing histories, with Facebook.

Specifically, the suit argued that Patreon violated the VPPA, which protects viewers’ video watching habits, through its use of software called the Facebook Pixel. The embedded code transmits the titles of videos Patreon users who also have Facebook accounts watched, as well as their Facebook user IDs, to Facebook without their consent, the complaint said.

Patreon responded to the suit with a motion to dismiss. Among other arguments, Patreon contended that the VPPA is unconstitutional as “substantially overbroad.” The company asserted that the law is a content-based regulation of non-commercial speech and fails to satisfy the “strict scrutiny” threshold. The motion also noted that the penalty of $2,500 in “liquidated damages” per consumer is unduly steep as the plaintiffs suffered no actual damages from the disclosure.

Now, after being granted several extensions, the United States has decided to intervene to defend the constitutionality of the VPPA. According to the memorandum, the law has gone unchallenged for almost all of its 35 years of existence and only two federal courts have considered First Amendment challenges to analogous state statutes and have rejected those contentions.

The government commented that Patreon’s argument, that the VPPA is facially overbroad because “certain of its hypothetical applications could violate the First Amendment,” is “a difficult path.” According to the filing, the government agrees that the VPPA is a commercial speech regulation, but contends that the overbreadth analysis does not typically apply.

Instead, the memorandum says that the law withstands the intermediate scrutiny analysis applicable to regulations of commercial speech. Though the government acknowledges that the VPPA could prohibit non-commercial disclosures, it says that courts can consider those issues in a concrete context should they arise in future cases.

The dismissal motion is scheduled for January 27 in San Francisco, Calif. 

The government is represented by attorneys with the United States Department of Justice’s Federal Programs Branch. The plaintiffs are represented by Girard Sharp LLP and Patreon by The Norton Law Firm PC.

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