Earlier this year, we covered the dismissal of a putative class action asserting Video Privacy Protection Act (VPPA) claims against the operators of a Texas Longhorns email newsletter. A judge in the Western District of Texas has now dismissed those claims, along with a newly asserted Wiretap Act claim, with prejudice. See Brown v. Learfield Commc’ns, LLC, 2024 WL 1477636 (W.D. Tex. June 27, 2024).  

Plaintiffs alleged that Defendant violated the VPPA and the Wiretap Act by using a pixel to track its website visitors’ activity on its own and other websites. The court summarily dismissed the VPPA claim, reaffirming its earlier determination that Plaintiffs, by merely subscribing to the university newsletter, were not “consumers” within the meaning of the VPPA, which is limited to someone who “rents, purchases, or subscribes to[] audio visual materials, not just any products or services from a video tape services provider.” The order reaffirmed the district court’s earlier reliance on Carter v. Scripps, which Plaintiffs attempted to distinguish. The Plaintiffs argued that while the relevant videos were independently available apart from the newsletter, the VPPA still applied because the newsletter had hyperlinks that connected newsletter subscribers to those videos. The district court refused to follow this line of reasoning. 

The court then dismissed the Wiretap Act on the basis of the “party exception.” The court explained that the Wiretap Act only requires the consent of one party, and, as the website operator, Defendant was immune from liability as a party to the communication.

The court, in line with In re Google Inc. Cookie Placement Consumer Priv. Litig., refused to apply the Wiretap Act in equity, similarly finding the statutory language of the Act narrowly proscribed toward wiretapping — as opposed to fraud and deceit more liberally. 806 F.3d 125, 140 (3d Cir. 2015). Plaintiffs also argued that the party exception did not apply because of the crime-tort “exception-to-the-exception,” but the court rejected this argument, too. Following the majority position, the court reasoned that Plaintiffs did not adequately plead independent unlawful and deceitful behavior outside of the actual interception. The court also noted that, in any case, there was no plausible allegation of the “intent” required for this exception, wryly commenting that “[p]laintiff has not alleged that Learfield deliberately sought to harm Plaintiffs by using marketing tools.”