On April 29, 2016, the First Circuit Court of Appeals addressed the question of what data constitutes “personally identifiable information” and who is a “subscriber” under the Video Privacy Protection Act (VPPA) in Yershov v. Gannet Satellite Information Network, Inc. The plaintiff claimed that Gannett shared information identifying him and the video clips that he watched through the app with Adobe, which provided analytics services for the mobile app. As described in greater detail below, the court decided that

  • downloading and using the USA Today mobile app (without monetary payment) could make a person a subscriber and
  • sharing device identifier and precise geolocation data (along with a description of the video clips viewed) may be a disclosure of personally identifiable information.

Businesses that publish mobile apps (or websites) that show video materials and the third party service providers that may receive information about the content and those who view the content (particularly precise geolocation data) should carefully follow the case when it returns to the trial court.

Personally Identifiable Information

The court concluded that the combination of a unique device identifier and precise geolocation is personally identifiable information that may identify a “person as having requested or obtained specific video materials.” Because the complaint alleges that Adobe had the ability to use these data elements to identify a specific person, the court determined that it stated a reasonable claim. However, it should be noted that the plaintiff will be obligated to prove that Adobe would be able to do so at trial.

If the plaintiff is successful at trial, the resulting case could establish a precedent that applies the VPPA to a wide variety of third party service providers. It should also be noted that the court did not opine on whether either of those data types alone would be personally identifiable information. However, the court’s analysis focuses primarily on the identifiability of precise geolocation, relying on the device identifier simply to show that a group of videos were viewed on the same device. Subsequent courts could extrapolate this decision to conclude that sharing precise geolocation data from a single device (without sharing the actual device identifier) may be sufficient to identify a person.

Subscriber

The court determined that monetary payment is not necessary in order to be a subscriber. The VPPA applies to information collected from “any renter, purchaser or subscriber of goods or services from a video tape service provider.” The First Circuit reasoned that requiring monetary payment to be a subscriber would be redundant, because any paid subscriber would also be a renter or purchaser.

The court also distinguished the Eleventh Circuit ruling in Ellis v. Cartoon Network, Inc., 803 F.3d 1251 (11th Cir. 2015). In that matter, the Eleventh Circuit also concluded that monetary payment is not required in order to be a subscriber. The Eleventh Circuit reasoned that there must be “some type of commitment, relationship, or association (financial or otherwise),” but found that plaintiff Ellis could not demonstrate such. To the contrary, the First Circuit found that Yershov’s provision of his unique device identifier and precise geolocation was sufficient consideration to establish a relationship and thus be a subscriber. The court stated that sharing this information created a relationship with Gannett substantially different from those who visit the USA Today website.

Moreover, the First Circuit rejected the district court analysis that downloading the USA Today mobile app was no different than adding the USA Today website to the favorites in a web browser. The First Circuit found that the district court’s argument assumes that there is no difference between the USA Today website and mobile app. However, the court acknowledged that its ruling is limited to the conclusion that the plaintiff has stated a reasonable claim. It would be the plaintiff’s obligation to demonstrate at trial that downloading and using the mobile app is substantially different than simply visiting the USA Today website.