A court in the Northern District of California recently dismissed with prejudice a case that claimed a company violated the New York Video Consumer Privacy Act (“NYVCPA”) and the Minnesota Video Privacy Law (“MVPL”) by retaining consumers’ personally identifiable video rental history data.  The court found that neither the NYVCPA nor the MVPL contained private rights of action for retention of that data.

The case, Minahan v. Google LLC, No. 22-cv-5652-YGR (N.D. Cal. 2023), involved claims that a company violated the New York and Minnesota statutes by retaining video rental history data tied to personally identifying information, allowing consumers to log into their accounts and view a history of their video rentals and payments made for those rentals.  Plaintiffs further argued that the private rights of action provided in the NYVCPA and MVPL were not limited to challenges to “disclosure” of video rental history data and encompassed “retention” of that data.

The Minahan court rejected those claims, following the reasoning of another case from earlier this year that dismissed claims on similar grounds.  The court noted that the texts and legislative histories of the statutes indicated that disclosure, not retention, of video rental history data was the target of their private rights of action.  Relatedly, the court observed that a damages theory based on retention made little sense because there was no apparent injury when a company retained but did not disclose information a consumer voluntarily provided.  Moreover, the court noted that courts have employed similar reasoning in refusing to recognize private rights of action based on retention—as opposed to disclosure—under the analogous federal statute, the Video Privacy Protection Act (“VPPA”).  See, e.g., Rodriguez v. Sony Computer Ent. Am., LLC, 801 F.3d 1045, 1050-52 (9th Cir. 2015).  Lastly, the court pointed to Ninth Circuit precedent holding that where a statute’s language is directed at the regulated entity, rather than the party seeking relief, there is no private right of action.  Id. at 1051.

The decision in Minahan and other recent cases involving the VPPA, NYVCPA, and MVPL further underscores a distinction courts have highlighted between claims involving retention versus claims involving disclosure.