Case 1:22-cv-10195-RGS Document 31 Filed 09/19/22 Page 1 of 6
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`CIVIL ACTION NO. 21-10810-RGS
`
`
`DAVID AMBROSE
`
`v.
`
`BOSTON GLOBE MEDIA PARTNERS LLC
`
`
`MEMORANDUM AND ORDER ON
`DEFENDANT’S MOTION TO DISMISS
`
`September 19, 2022
`
`
`
`
`STEARNS, D.J.
`
`
`
`Defendant Boston Globe Media Partners LLC (the Globe) seeks
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`dismissal of David Ambrose’s First Amended Complaint (FAC), a putative
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`class action suit alleging that the Globe disclosed his personally identifiable
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`information (PII) – and the PII of other digital Globe subscribers – to
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`Facebook in violation of the Video Privacy Protection Act (VPPA), 18 U.S.C.
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`§ 2710. For the reasons that follow, the court will deny the Globe’s motion.
`
`BACKGROUND
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`
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`The Globe, a self-described “multimedia organization that provides
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`news, entertainment, and commentary across multiple brands and
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`platforms,” maintains a website (bostonglobe.com) that features “national
`
`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`CIVIL ACTION NO. 21-10810-RGS
`
`
`DAVID AMBROSE
`
`v.
`
`BOSTON GLOBE MEDIA PARTNERS LLC
`
`
`MEMORANDUM AND ORDER ON
`DEFENDANT’S MOTION TO DISMISS
`
`September 19, 2022
`
`
`
`
`STEARNS, D.J.
`
`
`
`Defendant Boston Globe Media Partners LLC (the Globe) seeks
`
`dismissal of David Ambrose’s First Amended Complaint (FAC), a putative
`
`class action suit alleging that the Globe disclosed his personally identifiable
`
`information (PII) – and the PII of other digital Globe subscribers – to
`
`Facebook in violation of the Video Privacy Protection Act (VPPA), 18 U.S.C.
`
`§ 2710. For the reasons that follow, the court will deny the Globe’s motion.
`
`BACKGROUND
`
`
`
`The Globe, a self-described “multimedia organization that provides
`
`news, entertainment, and commentary across multiple brands and
`
`platforms,” maintains a website (bostonglobe.com) that features “national
`
`
`
`Case 1:22-cv-10195-RGS Document 31 Filed 09/19/22 Page 2 of 6
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`and
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`local content”
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`including “news articles, photographs,
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`images,
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`illustrations, audio clips and video clips.” FAC (Dkt # 22) ¶¶ 8-9. Indeed,
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`the Globe “creates, hosts, and disseminates hundreds, if not thousands, of
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`videos” for various purposes – “as stand-alone content, as supplements to
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`articles, and as content sponsored by advertisers.” Id. ¶¶ 10-11. To access
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`the Globe’s video content, individuals must pay for a digital subscription. Id.
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`¶¶ 14, 16.
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`
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`Ambrose alleges that the Globe discloses digital subscribers’ PII to
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`Facebook without the subscribers’ permission. Id. ¶ 20. Specifically,
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`Ambrose claims that the Globe website hosts the Facebook Tracking Pixel –
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`a piece of code that “tracks the people and type of actions they take” by
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`capturing a digital subscriber’s action and sending a record of that action to
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`Facebook. Id. ¶¶ 25, 28. The record includes the webpage that the subscriber
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`visited, the title and description of the webpage, and the number of times the
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`subscriber views the associated video. Id. ¶¶ 28-32. Further, a subscriber
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`who is logged into Facebook while watching a video on the Globe website will
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`transmit a c:\user folder (“cookie”) – that contains that visitor’s unencrypted
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`Facebook ID. Id. ¶ 33. “Anyone can identify a Facebook profile – and all
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`personal information publicly listed on that profile – by appending the
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`Facebook ID to the end of Facebook.com.” Id. ¶ 42. The Globe also uses
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`2
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`Case 1:22-cv-10195-RGS Document 31 Filed 09/19/22 Page 3 of 6
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`Facebook’s “Advanced Matching” tool, which transmits “a subscriber’s email
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`address, first name, last name, telephone number, and mailing address” to
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`Facebook. Id. ¶ 47.
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`
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`Ambrose, who has been a Facebook user since 2005, purchased a
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`digital subscription to the Globe’s website in August of 2020. Id. ¶ 59.
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`According to Ambrose, the Globe has – using Facebook’s Tracking Pixel and
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`Advanced Matching tools – disclosed Ambrose’s Facebook ID, email address,
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`first name, last name, and mailing address to Facebook, as well as
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`information about the videos Ambrose has accessed on the Globe website.
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`Id. ¶¶ 61-66.
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`DISCUSSION
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`“The sole inquiry under Rule 12(b)(6) is whether, construing the well-
`
`pleaded facts of the complaint in the light most favorable to the plaintiffs, the
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`complaint states a claim for which relief can be granted.” Ocasio-Hernandez
`
`v. Fortuno-Burset, 640 F.3d 1, 7 (1st Cir. 2011). In most circumstances, the
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`plaintiff need not demonstrate a “heightened fact pleading of specifics,” but
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`rather must present “only enough facts to state a claim to relief that is
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`plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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`“A claim has facial plausibility when the plaintiff pleads factual content that
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`allows the court to draw the reasonable inference that the defendant is liable
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`
`
`3
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`Case 1:22-cv-10195-RGS Document 31 Filed 09/19/22 Page 4 of 6
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`for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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`Accordingly, facts that are “merely consistent with” a defendant’s liability are
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`inadequate. Id. Further, the recitation of the elements of a claim, “supported
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`by mere conclusory statements,” is insufficient to establish facial plausibility.
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`Id.
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`In 1988, Congress passed the VPPA “after the Washington City Paper
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`published Supreme Court nominee Robert Bork’s video rental history. The
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`paper had obtained (without Judge Bork’s knowledge or consent) a list of the
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`146 films that the Bork family had rented from a Washington, D.C.-area
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`video store.” In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 278
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`(3d Cir. 2016) (internal quotations omitted). The Senate Report explaining
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`the passage of the VPPA states that Congress’s intent was “[t]o preserve
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`personal privacy with respect to the rental, purchase or delivery of video
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`tapes or similar audio visual materials.” S. Rep. No. 100-599, at 1 (1988),
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`reprinted in 1988 U.S.C.C.A.N. 4342-1.
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`To state a claim under the VPPA, “a plaintiff must allege that ‘[a] video
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`tape service provider . . . knowingly disclose[d], to any person, personally
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`identifiable information concerning any consumer of such provider.’” In re
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`Nickelodeon, 827 F.3d at 279, quoting 18 U.S.C. § 2710(a)(4). The VPPA
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`defines a “video tape service provider” as “any person, engaged in the
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`4
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`Case 1:22-cv-10195-RGS Document 31 Filed 09/19/22 Page 5 of 6
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`business, in or affecting interstate or foreign commerce, of rental, sale, or
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`delivery of prerecorded video cassette tapes or similar audiovisual
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`materials.” 18 U.S.C. § 2710(a)(4). “Personally identifiable information,” or
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`PII, is defined as “includ[ing] information which identifies a person as
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`having requested or obtained specific video materials or services from a
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`video tape service provider.” Id. § 2710(a)(3). Finally, a “consumer” is “any
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`renter, purchaser, or subscriber of goods or services from a video tape service
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`provider.” Id. § 2710(a)(1).
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`On its face, “construing the well-pleaded facts of the [FAC] in the light
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`most favorable to” Ambrose, Ocasio-Hernandez, 640 F.3d at 7, Ambrose’s
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`VPPA claim plausibly states a claim for relief. The FAC alleges that the Globe
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`is engaged in the business of delivering various types of video content to its
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`digital subscribers. Further, Ambrose claims that the Globe knowingly
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`disclosed his PII (and the PII of other digital subscribers) to Facebook –
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`namely, his Facebook ID, email address, first name, last name, mailing
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`address, and information about what videos he has watched on the Globe
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`website – through its use of Facebook’s Tracking Pixel and Advanced
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`Matching tools. Finally, Ambrose and other digital subscribers of the Globe’s
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`video and other multimedia services are plausibly consumers as defined by
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`the VPPA.
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`5
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`Case 1:22-cv-10195-RGS Document 31 Filed 09/19/22 Page 6 of 6
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`The Globe’s arguments in favor of dismissal rely on factual disputes
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`that are not appropriate for disposition at this early stage. “Although one
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`could imagine a different conclusion at summary judgment once the
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`evidence is examined, it is plausible to conclude from these . . . allegations
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`that [the Globe] engages in the business of delivering audio visual materials,
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`and that its business is ‘significantly tailored to serve that purpose.’” In re
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`Facebook, Inc., Consumer Privacy User Profile Litig., 402 F. Supp. 3d 767,
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`799 (N.D. Cal. 2019), quoting In re Vizio, Inc. Consumer Privacy Litig., 238
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`F. Supp. 3d 1204, 1221 (C.D. Cal. 2017). Similarly, although it is conceivable
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`that after discovery it will become apparent that the Globe does not (as it
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`maintains) transmit its digital subscribers’ PII to Facebook in the manner
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`Ambrose has alleged, at this juncture Ambrose has done enough to state a
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`viable VPPA claim.
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`ORDER
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`For the foregoing reasons, the Globe’s motion to dismiss is DENIED.
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`SO ORDERED.
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`/s/ Richard G. Stearns__________
`UNITED STATES DISTRICT JUDGE
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`6
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