• by Wendy Davis  @wendyndavis, November 28, 2016

Vizio is pressing a federal judge to dismiss a class-action complaint accusing the company of violating privacy laws by allegedly sharing data about consumers' TV-viewing habits.

The company contends in court papers filed last week that it would be "fundamentally unfair" to apply a 28-year-old video privacy law to its smart TVs.

Vizio's newest argument comes in response to a lawsuit alleging that the company runs afoul of several statutes, including the Video Privacy Protection Act, by tracking TV viewers and then sharing data about them with companies that send targeted ads to people's phones, tablets and other devices.

The Video Privacy Protection Act, passed in 1988, prohibits video providers from disclosing "personally identifiable information" about people's video-viewing history without their explicit consent. Congress passed the measure after a newspaper in Washington, D.C. obtained and printed the video rental records of Supreme Court nominee Judge Robert Bork. The law's restrictions apply to providers of videotapes or "similar audiovisual material."

Vizio, which recently agreed to be acquired for $2 billion by Chinese tech company LeEco, argued in papers filed earlier this year that the consumers' claim should be dismissed on a variety of grounds, including that it's a manufacturer, not a "video provider."

The consumers countered that Vizio is a video provider, because it "brings the video rental store into the home, allowing plaintiffs to access video on demand through Vizio’s proprietary interface."

Vizio is now striking back at the consumers' contention, arguing that their theory could have far-ranging consequences.

"Computers, blu-ray players, and many cars are equipped with software that allows consumers to access video content. None of them are video providers because none of them rent, sell, or deliver videos," Vizio argues in papers filed with U.S. District Court Judge Josephine Staton in Santa Ana, California.

"There is no meaningful difference between Vizio and a computer manufacturer," the company adds. "And if Plaintiffs’ interpretation is adopted, then thousands of device manufacturers would suddenly be swept within the reach of a statute that was initially passed for the purpose of regulating Blockbuster and the local video store."

Vizio also says it had no notice that the video privacy law might apply to its business. "It would be fundamentally unfair -- and a legally improper and unprecedented expansion of a narrowly crafted statute -- for Vizio to be swept within its reach," the company argues.

In addition, Vizio says the data it allegedly transmits isn't "personally identifiable."

The consumers argued that the information Vizio allegedly disclosed -- including iIP addresses, MAC (media access control) addresses, and product serial numbers -- is unique and therefore, personally identifiable.

Vizio counters in its new papers that the consumers' concept of personally identifiable is too broad. "Any piece of information, in combination with some other information, could allegedly divulge a person’s identity," the company says.

Courts throughout the country are struggling to determine what type of information is personally identifiable. Earlier this year, the 1st Circuit Court of Appeals ruled that Gannett potentially violated the video privacy law by allegedly transmitting users' device identifiers, GPS data and video-viewing history to Adobe.

But other courts have dismissed lawsuits against video distributors that allegedly transmitted "anonymous" information to outside companies. In one recent dispute, a judge in Seattle dismissed a lawsuit by Roku user Chad Eichenberger, who accused ESPN of sending his Roku serial number, combined with data about videos watched, to Adobe. Eichenberger has appealed that matter to the 9th Circuit Court of Appeals, where the case is pending.

The battle between the consumers and Vizio dates to last November, shortly after ProPublica published a report about the company. Lawyers for Vizio and the consumers are expected to argue their cases to Staton at a hearing on December 18.