United States Court of Appeals For the Seventh Circuit
Consumer Protection — Video Privacy Protection Act
18 U.S.C. 2710(e) of the Video Privacy Protection Act can’t be enforced by a damages suit under subsec. (c).
“The statute is not well drafted, even after the error in section (b)(1) is corrected. The biggest interpretive problem is created by the statute’s failure to specify the scope of subsection (c), which creates the right of action on which this lawsuit is based. If (c) appeared after all the prohibitions, which is to say after (d) and (e) as well as (b), the natural inference would be that any violator of any of the prohibitions could be sued for damages. But instead (c) appears after just the first prohibition, the one in subsection (b), prohibiting disclosure. This placement could be an accident, but we agree with the only reported appellate case to address the issue, Daniel v. Cantrell, 375 F.3d 377, 384-85 (6th Cir. 2004), that it is not; that the more plausible interpretation is that it is limited to enforcing the prohibition of disclosure. For one thing, the disclosure provision, but not the others, states that a ‘video tape service provider who knowingly discloses, to any person, personally identifiable information . . . shall be liable to the aggrieved person for the relief provided in subsection [c],’ which includes damages. And for another thing, it would be odd to create a damages remedy for ‘receiv[ing]’ information in evidence in an official proceeding; that would make a judge who admitted evidence in violation of subsection (d) liable in damages, erasing the absolute immunity from suit for acts taken in a judge’s judicial capacity.”
Petition for Permission to Appeal from the United States District Court for the Northern District of Illinois, Kennelly, J., Posner, J.