Antitrust Law Daily Wrap Up, PRIVACY—W.D. Wash.: Failure to allege disclosure of personally identifiable information leads to dismissal of claims against Amazon, (Sep 5, 2024)

By Seth Abrams, J.D., M.A.

While Amazon provided access to personally identifiable information, the Video Privacy Protection Act and California Civil Code § 1799.3 require that disclosures of such information are made for liability under the statutes.

The federal district court in Seattle dismissed claims brought against Amazon.com, Inc. and Amazon.com Services LLC (individually, “Amazon Services” and together with Amazon.com, Inc. “Amazon.”). Three consumer plaintiffs had brought a putative class action alleging disclosure of their personally identifiable information (“PII”) to other Amazon affiliate and third parties in violation of the federal Video Privacy Protection Act (“VPPA”) and Washington Consumer Protection Act (“CPA”). The court held that the consumers did not plausibly allege that Amazon Services disclosed the consumers’ PII, as required by the VPPA. Further, the consumers could have avoided any injury, and, in any event, did not plead an injury under the CPA (Beagle v. Amazon.com, Inc., No. 2:24-cv-00316-JLR (W.D. Wash. Sept. 3, 2024)).

Background. The consumers contended that “Amazon Services maintains a virtual ‘warehouse’ of data that it collects from [users of Amazon Prime Video] who are unable to opt-out.” The consumers further contend that Amazon Services provided access to that information to Amazon.com Inc. and “non-Amazon affiliated third parties” for advertising and audience measurement. These practices are allegedly “buried” in “lengthy privacy notices and terms of use.” The consumers seek to represent a class comprised of “all persons nationwide who have rented, purchased, or streamed audiovisual content from Amazon Prime within the applicable statute of limitations and as permitted by applicable tolling periods.” In addition, one of the plaintiffs seeks to represent a sub-class comprised of “all persons in the State of California who have Prime Video and Amazon.com accounts and viewed videos on Prime Video.”

VPAA/Section 1799.3. The VPAA and section 1799.3 make disclosure by certain video service providers of a customer’s personal information to another person unlawful, subject to exceptions. The court found that the consumers did not plausibly allege that Amazon Services actually disclosed any of their PII to Amazon affiliates or third parties. Instead, the consumers alleged the “mere possibility that information could be disclosed to those affiliates, rather than that Amazon Services had in fact made such disclosures.” Providing access to the consumers’ PII does not suggest that “Amazon Services has taken the affirmative act of disclosing that data to Amazon.com, Inc. or that Amazon.com, Inc. has actually received the data.” In addition, there are no allegations of automatic disclosures of PII from Amazon Services to Amazon.com, Inc. Furthermore, the court noted that, although the terms of use for Amazon Prime Video provide that Amazon Services may provide information to third parties, there is no allegation that the PII was disclosed to third parties. The consumers’ allegation did not rise to the level of plausibility here. As a result, the consumers failed to plead an essential element of a claim under the VPPA or section 1799.3. The court also did not consider exceptions for “ordinary course of business” or those made with the customer’s “written consent” because it determined that the consumers failed to allege any unlawful disclosures of PII.

The court, however, did not conclude that amendment would be futile for the VPAA and Section 1799.3 claims. As a result, it granted the consumers leave to amend these claims and the dismissal of these claims was without prejudice.

CPA. The court held that the consumers cannot plead an unfair act under the CPA. Among other requirements, an unfair act must be one that “consumers cannot avoid.” The consumers did not allege that Amazon disclosed their PII. However, even if the consumers had “alleged that disclosure of their PII caused or is likely to cause them substantial injury... that injury would have been avoidable.” Because the “relevant terms and conditions disclose these exact practices,” all that the consumers “had to do to avoid the alleged injury was read the terms and conditions and choose not to use Amazon’s services.” Furthermore, the consumers are unable to “plead an injury to their business or property that is cognizable under the CPA.” The cases relied upon by the consumers involve data breaches in which the plaintiffs were injured. In this case, however, the consumers “do not, and cannot, allege that they are victims of an unfair act or suffered a cognizable injury under the CPA.” Thus, the court dismissed the CPA claim without leave to amend and with prejudice.

Invasion of privacy. The court also denied the consumers’ request to add a claim for invasion of privacy, finding that such claim would be futile. A claim for invasion of privacy requires disclosure to the public at large. The court noted that, in contrast, this case is about “Amazon’s alleged disclosures of PII within the Amazon ecosystem and to certain third parties to communicate with Amazon users about promotional offers and target them with ads.” This does not constitute the “public at large.” As a result, it denied the request to add a claim for invasion of privacy.

The Case is No. 2:24-cv-00316-JLR.

Judge: Robart, J.

Attorneys: Amanda Kate Klevorn (Burns Charest LLP) for Meredith Beagle. Erwin A. Reschke (Davis Wright Tremaine LLP) for Amazon.com Inc.

Companies: Amazon.com Inc.

Cases: Privacy WashingtonNews