October 09, 2015 Practice Points

Eleventh Circuit Finds Users of Free Apps Not Protected under Video Privacy Protection Act

The Eleventh Circuit found that a person who downloads and uses a free mobile application is not a "subscriber" within the meaning of the Video Privacy Protection Act

by Mark Romance

In Ellis v. The Cartoon Network, Inc., Case No. 14-15046, 2015 WL 5904760 (11th Cir. Oct. 9, 2015), the Eleventh Circuit found that a person who downloads and uses a free mobile application is not a "subscriber" within the meaning of the Video Privacy Protection Act, 18 U.S.C. § 2710 (VPPA), and thus not entitled to prohibit the application's owner from sharing information about the user and the videos the user viewed through the application.

The VPPA was enacted in 1988 to protect a person's right to privacy in the choice of movies and videos he or she views. The VPPA prohibits "video tape service providers" from disclosing to a third party "personally identifiable information concerning any consumer." Consumers have a federal cause of action for violations including the right to recover actual or statutory damages of at least $2,500, punitive damages, attorney fees, and other equitable relief. The term "consumer" means any renter, purchaser, or "subscriber" of goods or services from a video tape service provider.

In this case, the plaintiff downloaded a free application from the Cartoon Network on his Android smartphone to watch video clips. The free app does not require the user to create a login account, and the user can view video clips without having to provide any information to Cartoon Network. But Cartoon Network can identify an Android user through the user's Android ID, a 64 bit number, and can track that particular user's viewing history. The Cartoon Network maintains records of each video watched by the user. Without his consent, Cartoon Network kept records of the videos that the plaintiff watched and shared those records with Bango, a company that specializes in tracking individual behaviors across the Internet and mobile applications. Bango uses Android IDs to track specific users' activities and was able to identify the plaintiff from his Android ID and know which videos he watched.

The plaintiff sued Cartoon Network alleging that he was a "subscriber" and, therefore, a "consumer" under the VPPA, seeking relief for Cartoon Network's violation of the VPPA through its disclosure to a third party of his personally identifiable information—his Android ID and his video viewing records. The U.S. District Court for the Northern District of Georgia agreed that the plaintiff was a "consumer" but ruled that his personally identifiable information had not been disclosed, and dismissed the case, determining that the complaint failed to state a cause of action. Ellis v. The Cartoon Network, Inc., Case No. 1:14-CV-484-TWT, 2014 WL 5023535 (N.D. Ga. 2014).

The Eleventh Circuit affirmed, but disagreed with the district court on the first issue, ruling that the plaintiff was not a "consumer" under the VPP because he was not a "subscriber." The appellate court acknowledged that the VPPA does not include a definition of a "subscriber" and the federal appellate courts had yet to address what the term means under the VPPA. The court first looked to various dictionary definitions of the word "subscriber" to ascertain the "ordinary meaning" of the term. The court determined that a "subscriber" does not require a "payment" by the user, acknowledging that a person accessing services for free could qualify as a subscriber. But the court determined that the dictionary definitions have a common thread; that is, that the term "subscription" requires some kind of "commitment, relationship or association (financial or otherwise) between a person and an entity." The court then determined that its interpretation was consistent with the trial court's decision in Yershov v. Gannett Satellite Info. Network, Inc., Case No. 1:2014cv13112 , 2015 WL 2340752 (D. Mass. May 15, 2015), which held that a user of the free USA Today application was not a subscriber under the VPPA.

Because it determined that the plaintiff was not a "subscriber," and thus not a "consumer," the Eleventh Circuit affirmed the dismissal on that ground alone, without reaching the issue of whether the Android ID and video viewer history constituted "personally identifiable information." The affirmance means that the plaintiff did not state a cause of action, and his claims were dismissed. In short, Cartoon Network's disclosure of the plaintiff's Android ID and his video viewing history were not covered by the VPPA, and not prohibited disclosures.

Keywords: consumer, commercial and business, internet litigation, personally identifiable information, privacy, subscriber, Video Privacy Protection Act

Mark Romance is with Richman Greer, P.A., in Miami, Florida.


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