Eleventh Circuit Defines “subscriber” Within the Context of the Video Privacy Protection Act

The Eleventh Circuit faced two issues of first impression concerning the Video Privacy Protection Act (“VPPA”), 18 U.S.C. § 2710 (2012) in Ellis v. Cartoon Network, Inc., No. 14-15046, 2015 WL 5904760 (11th Cir. Oct. 9, 2015). First, the court was tasked with determining who a “subscriber” (and therefore a “consumer”) is under the Act. After looking to the dictionary definition and interpretations of lower courts, the Eleventh Circuit concluded that “a person who downloads and uses a free mobile application on his smartphone to view freely available content, without more, is not a ‘subscriber’ (and therefore not a ‘consumer’) under the VPAA.” Id. at *1. The court did not reach the second issue of determining what constitutes “personally identifiable information” under the Act.

The facts of the case are straightforward. Mark Ellis sued Cartoon Network, Inc. (“CN”) under the VPAA for allegedly disclosing his “personally identifiable information” to a third-party. Mr. Ellis downloaded the network’s free CN app on his Android smartphone to watch free video clips. This app did not require Mr. Ellis to create a login account, pay to view any media, or agree to any terms of services.

The app did however identify and track Mr. Ellis’s Android smartphone through his mobile device identification or Android ID, a 64-bit number randomly generated when a user sets up his device that stays consistent throughout the lifetime of the user’s device. Through this ID, CN maintained a record of media viewed by each user and sent this information to a third-party data analytics company known as Bango. Bango specializes in tracking individual behaviors across the internet and mobile apps and can link an Android ID to a particular person by compiling information about that individual from other websites, apps, and sources. Each time that Mr. Ellis used the CN app, CN forwarded records of the videos he watched to Bango.

The VPPA “prohibits ‘video tape service providers’ from knowingly disclosing, to a third-party, ‘personally identifiable information concerning any consumer.’” Id. at *1. The VPPA defines the term consumer to mean “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” Id. The court found the case of Yershov v. Gannet Satellite Info. Network, Inc., 2015 WL 2340752 (D. Mass. May 15, 2015) (holding that a person who simply downloads a free app on a mobile device is not a “subscriber”) persuasive in holding that while payment is not a necessary element of subscription, “downloading an app for free and using it to view content at no cost is not enough to make a user of the app a “subscriber” under the VPPA, as there is no ongoing commitment or relationship between the user and the entity which owns and operates the app.” No. 14-15046 at *6.

The Eleventh Circuit concluded that a subscription must involve some type of commitment, relationship, or association (financial or otherwise) between a person and an entity, and that Mr. Ellis could not be considered a “subscriber” under the VPAA. Despite not deciding the case on the same grounds (the district court had determined that Mr. Ellis was a “subscriber”, but that no violation of the VPPA had occurred because Bango had to take additional steps to match the Android ID to Mr. Ellis), the court affirmed the district court’s dismissal for failure to state a claim.

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