On August 12, 2025, the U.S. Court of Appeals for the District of Columbia Circuit delivered a ruling for the defense in an internet wiretap case involving the Meta Pixel tracking tool, offering crucial ammunition for the many defendants facing the surge of privacy litigation targeting Meta Pixel and similar tracking technologies under the Video Privacy Protection Act (VPPA).
Meta Pixel Wiretap Lawsuits
As discussed in prior posts, consumer law attorneys throughout the country have repurposed outdated federal and state “wiretap” laws to generate a growing wave of class action litigation against website operators for using technologies that capture website browsing data for analysis, such as website session replay software, chatbots, and website traffic analysis and tracking tools.
Wiretap cases based on the Meta Pixel tracking tool target companies that employ the free code from Meta to track user activity on a website for targeted advertising. To carry out its function, the code transmits certain information about how a user interacts with a website to Meta including the site HTTP headers, pixel-specific data, and other information depending upon how a company configures the software.
In Meta Pixel cases, plaintiffs allege that the Pixel shares browsing data with Meta/Facebook, which is acting as a third party wiretapper in collecting this data for its own gain. This is an important distinction from the session replay and chat cases, where defendants are able to successfully argue that the software provider is acting on their behalf, rather than for its own internal purposes.
The Video Privacy Protection Act
The Video Privacy Protection Act (VPPA) was enacted in 1988 to prevent the unauthorized disclosure of video rental or purchase records by making it unlawful for “video tape service providers” to knowingly disclose personally identifiable information about consumers, except under certain circumstances such as with consent or a court order. The law defined “consumers” as any renter, purchaser, or subscriber of goods or services from a video tape service provider and imposed statutory damages of up to $2,500 per violation.
Originally drafted to target old school VHS tapes and DVD rentals, the language of the VPPA has proven itself sufficiently malleable to encompass modern digital video services. Courts and litigants eventually began applying the VPPA to online digital service providers like Netflix, Hulu, and other websites that host video content.
In recent years, the VPPA has been repurposed yet again as a trigger for class action lawsuits targeting website operators that use tracking technologies like the Meta Pixel, which can potentially collect and share users’ video viewing histories and other personal data with third parties (namely Meta), often without explicit user consent, which the attorneys cashing in on these cases argue violates the VPPA.
The Pileggi decision discussed below comes amid an unprecedented surge in privacy litigation targeting Meta Pixel and similar tracking technologies. Over 250 VPPA class actions were filed in 2024, representing an 82% increase from the 137 cases filed in 2023. This litigation explosion has particularly impacted the healthcare sector, which accounts for 28% of tracking technology lawsuits, with upwards of 200 cases filed against healthcare organizations alone.
In addition, the widespread adoption of Meta Pixel technology has created a substantial target for plaintiffs' attorneys. According to industry reports, approximately 47% of websites currently use Meta Pixel, including 55% of companies in the S&P 500, 58% of retail industry websites, 42% of finance sector sites, and 33% of healthcare websites. This extensive deployment means that virtually every major industry faces potential exposure to VPPA claims.
Pileggi v. Washington Newspaper Publishing Company
The case involved familiar allegations that have become commonplace in modern VPPA litigation. The plaintiff received the Washington Examiner's email newsletter, providing her personal information in exchange for periodic news updates. Separately and independently from her newsletter subscription, the plaintiff navigated to the newspaper's website—which utilized the Meta Pixel tool—and watched videos hosted there. According to the Complaint, the plaintiff’s video viewing history was transmitted to Meta without her knowledge or consent, enabling targeted advertising.
Critically, the plaintiff did not access the website or its videos through links provided in the newsletter, nor did she allege that the newsletter itself transmitted any video viewing information to Meta. This factual distinction would prove decisive in the D.C. Circuit's analysis.
The U.S. District Court for the District of Columbia initially dismissed the complaint for failure to state a claim, because the plaintiff failed to qualify as a "consumer" within the meaning of the VPPA. The district court reasoned that the VPPA's consumer definition requires that a plaintiff have purchased, rented, or subscribed to the specific videos or similar audio-visual materials at issue, and that merely subscribing to an unrelated newsletter was insufficient to establish the necessary connection under the statute. The plaintiff naturally appealed.
The Critical Ruling of the DC Circuit on VPPA Protection
On appeal, the D.C. Circuit unanimously affirmed the district court's dismissal, adopting a restrictive interpretation of the VPPA's consumer definition that will significantly limit future plaintiff claims. Writing for the court, Judge Patricia Millett explained that “to state a claim under the VPPA, a plaintiff must allege that she purchased, rented, or subscribed to the specific video or similar audio-visual good or service, and that the protected information disclosed must concern that same good or service.”
The court's analysis focused on the statutory text and structure of the VPPA. Under 18 U.S.C. §2710(a)(1), a "consumer" is defined as "any renter, purchaser, or subscriber of goods or services from a video tape service provider." The key interpretive question was whether this definition requires a connection between the "goods or services" subscribed to and the video content whose viewing history was allegedly disclosed.
The D.C. Circuit also emphasized the practical difficulties that would result from adopting a broader interpretation of "consumer." If subscribing to, purchasing, or renting any good or service from a company was sufficient for VPPA protection, “companies would face the "daunting task" of somehow determining whether website visitors had previously engaged in any commercial relationship with the company.“
Given the VPPA's substantial penalties of $2,500 per violation, the court found it implausible that Congress intended to impose such burdens on businesses. This reasoning reflects the court's sensitivity to the compliance challenges that would result from an overly expansive interpretation of the statute, particularly in the digital age where tracking user relationships across multiple touchpoints presents significant technical challenges.
Narrow Definition Creates Strong VPPA Defense
The Pileggi decision provides defendants with a powerful new argument for dismissing VPPA claims based on the plaintiff's failure to qualify as a protected consumer. The D.C. Circuit's holding that consumers must purchase, rent, or subscribe to the specific video content at issue—rather than any unrelated service from the company—will eliminate many pixel-based claims.
This defense is particularly valuable for media companies, e-commerce businesses, and other organizations that offer both subscription services (such as newsletters, loyalty programs, or account services) and video content on their websites. Under Pileggi, the mere fact that a website visitor has some commercial relationship with the company is insufficient to confer VPPA protection unless that relationship specifically involves the video content whose viewing history was allegedly shared.
As the litigation landscape continues to evolve, the Pileggi decision provides crucial guidance for courts grappling with how to apply 1988-era privacy legislation to 2025 digital realities. For defendants facing the current surge in pixel-based privacy litigation, the decision offers both immediate tactical advantages and long-term strategic benefits in an increasingly challenging legal environment.
