Free Mobile App Users Are Subscribers Under the VPPA: First Cir. | Practical Law

Free Mobile App Users Are Subscribers Under the VPPA: First Cir. | Practical Law

In Yershov v. Gannett Satellite Information Network, Inc., the US Court of Appeals for the First Circuit reversed the district court's Rule(12)(b)(6) dismissal of Yershov's complaint, and remanded the case for further proceedings, holding that Yershov's download and use of a free mobile app made him a subscriber within the meaning of the Video Privacy Protection Act of 1988 (VPPA).

Free Mobile App Users Are Subscribers Under the VPPA: First Cir.

Practical Law Legal Update w-002-2043 (Approx. 5 pages)

Free Mobile App Users Are Subscribers Under the VPPA: First Cir.

by Practical Law Intellectual Property & Technology
Published on 03 May 2016 • USA (National/Federal)
In Yershov v. Gannett Satellite Information Network, Inc., the US Court of Appeals for the First Circuit reversed the district court's Rule(12)(b)(6) dismissal of Yershov's complaint, and remanded the case for further proceedings, holding that Yershov's download and use of a free mobile app made him a subscriber within the meaning of the Video Privacy Protection Act of 1988 (VPPA).
On April 29, 2016, in Yershov v. Gannett Satellite Information Network, Inc., the US Court of Appeals for the First Circuit reversed the US District Court for the District of Massachusetts' dismissal of Alexander Yershov's complaint for failure to state a claim, and remanded the case for further proceedings ( (1st Cir. Apr. 29, 2016)). Splitting with the Eleventh Circuit, the court held users downloading free mobile applications could be considered subscribers under the Video Privacy Protection Act of 1988 (VPPA) (18 U.S.C. §2710). As a result, the court held Yershov adequately plead that Gannett Satellite Information Network, Inc. violated the VPPA by disclosing Yershov's mobile app video viewing information to a third party.
Gannett is an international media company that owns USA Today, a newspaper that Gannett publishes in multiple media formats, including print, online, and through a proprietary mobile application called the "USA Today Mobile App." According to the complaint's allegations, which are accepted as true when resolving a motion to dismiss for failure to state a claim, this mobile app:
  • Allows users to access USA Today's news and entertainment media content, including videos, on their mobile devices.
  • Does not seek or obtain the app user's consent to disclose information about the user to third parties during its installation process.
  • Sends information to an unrelated third party, Adobe Systems Inc., each time the user views a video clip on the app. The information sent includes the:
    • viewed video's title;
    • device's GPS coordinates when the video was viewed; and
    • unique device identifier, such as its Android ID.
Adobe allegedly combines that collected information with information from other sources to develop unique user profiles used to provide its clients with online marketing services and data analytics, enabling targeted advertisements based on a consumer's online behavior, or online behavioral advertising (OBA).
Yershov further alleged that he downloaded and installed the app on his Android mobile device in 2013 and subsequently:
  • Used the app to read news articles and watch video clips.
  • Never consented, agreed to, or otherwise permitted Gannett to disclose any information about him to third parties.
  • Gannett never provided him with an opportunity to prevent such disclosures.
Nevertheless, Gannett allegedly disclosed Yershov's video viewing information to Adobe, where it was used it to identify Yershov and link his viewed videos to an individualized OBA profile.
Yershov brought a class-action suit against Gannett alleging that Gannett's disclosure of his video viewing information to Adobe violated the VPPA. The district court granted Gannett's motion to dismiss for failure to state a claim, finding that the:
  • Information allegedly disclosed about Yershov by Gannett fit the VPPA's definition of personally identifiable information (PII).
  • VPPA did not apply to Yershov because he was not a "renter, purchaser, or subscriber" of or to Gannett's video content and therefore not a protected consumer.
On appeal, the First Circuit affirmed that the information disclosed was PII under the statute, but disagreed with the district court that the complaint's allegations failed to establish Yershov was a protected consumer under the VPAA.
With respect to the PII definition, the court held that PII is not limited to information that explicitly names a person, explaining that:
  • The statutory language defining PII, while awkward and unclear, reasonably supports a broader definition than just a person's name because:
    • if Congress had wanted a narrow and simple construction, it would not have drafted the statute so abstractly;
    • the language used to define PII begins with the word "includes," implying that the definition falls short of capturing the whole meaning; and
    • the official Senate Report expressly states that the drafters' aim was to establish a minimum but not exclusive definition.
  • Information other than a name can easily identify a person and the complaint describes ways that such identification occurs, for instance:
    • the GPS coordinates information can likely identify the home and work addresses of the viewer; and
    • Gannett allegedly knows that Adobe can use other information to link the GPS address and device identifier to a specific person.
  • The complaint alleges that Gannett disclosed information reasonably and foreseeably likely to reveal which USA Today videos Yershov viewed.
With respect to establishing that Yershov was a consumer, the court discussed whether the term "subscriber" should require monetary payment and concluded that it did not, explaining:
  • The statute has no definition of the term "subscriber" and therefore the plain and ordinary meaning applies.
  • If the term subscriber required monetary payment, the terms "renter" and "purchaser" that precede it in the statute would make "subscriber" a superfluous term.
  • There is no reason Congress would have wanted different rules to apply to transactions that did or did not have monetary payments, respectively.
  • While no monetary payment was necessary for Yershov to use the app, he did provide consideration in the form of information during installation of the app.
The First Circuit considered and rejected the Eleventh Circuit's contrary opinion in Ellis v. Cartoon Network, Inc. (803 F.3d 1251 (11th Cir. 2015); see Legal Update, Free App Users Are Not Subscribers Under the VPPA: 11th Circuit.) In contrast to the Ellis decision, the court found downloading and using a publisher's mobile app established a direct and ongoing relationship with the app user that was materially different from simple website browsing.
Finding that the complaint plausibly plead a case under the VPPA, the court reversed and remanded the case back to the district court for further proceedings.