USA Today Suffers Setback in Dispute Targeting Video Privacy of Newspaper's App

There's some life left in the Video Privacy Protection Act, the federal law enacted in the 1980s after the Washington Post published a list of videos rented by then-Supreme Court nominee Robert Bork. On Friday, the 1st Circuit Court of Appeals bucked a trend by reviving a putative class action brought by a man who downloaded USA Today's app only to have his video history shared with an analytics firm.

The VPPA is intended to punish a "video tape service provider who knowingly discloses ... personally identifiable information concerning any consumer," defined as "any renter, purchaser or subscriber."

Although privacy is a hot-button topic in this digital age, in a series of cases, courts have picked apart the VPPA and let entertainment and media companies off the hook from alleged disclosures. In January 2015, Viacom beat a lawsuit claiming it was sharing the identities of kids who watched videos on Nick.com. A judge ruled that identification was too speculative. Then in April 2015, Hulu beat a VPPA lawsuit because plaintiffs lacked evidence that it had "knowingly" disclosed the viewing habits of its users to Facebook. Finally in October, the Cartoon Network scored a victory over a VPPA lawsuit when the 11th Circuit Court of Appeals ruled that those who watch free videos on a mobile app aren't subscribers.

Given this, Friday's ruling by a three-judge panel at the 1st Circuit — which included former Supreme Court justice David Souter — is a fairly surprising development.

According to the lead plaintiff Alexander Yershov and his attorneys at Edelson, he downloaded the USA Today app for his Android phone and at no time ever consented to Gannett (USA Today's parent company) disclosing information about him to third parties. His lawsuit claims that Gannett nevertheless shared to the analytics firm Adobe the titles of viewed videos, his Android ID and the GPS coordinates of the device at the time videos were watched.

Writing for the 1st Circuit, Judge William Kayatta says that what was shared fits the definition of personally identifiable information.

"Imagine Gannett had disclosed that a person viewed 146 videos on a single device at sets of specified GPS coordinates," he writes. "Given how easy it is to locate a GPS coordinate on a street map, this disclosure would enable most people to identify what are likely the home and work addresses of the viewer (e.g., Judge Bork's home and the federal courthouse)."

Where Kayatta reverses the district court's holding — and diverges from the 11th Circuit outcome in the Cartoon Network case — is the finding that someone who downloads and uses an app can rise to being a "subscriber" under the VPPA. 

"We can discern no reason why Congress would have wanted different disclosure rules to apply to those transactions than to ones where a monetary payment is made," the judge writes. "And because we think that Congress cast such a broadly inclusive net in the brick-and-mortar world, we see no reason to construe its words as casting a less inclusive net in the electronic world when the language does not compel that we do so."

In 2012, upon lobbying from Netflix, Hulu and others, Congress amended the VPPA to allow users to opt into disclosures. That way, if consumers wanted, they could easily share their video history through social media. Kayatta points to the way lawmakers at the time didn't adopt a narrower meaning of "subscriber" to support his interpretation. Further, the 1st Circuit judge addresses the opinion in the Cartoon Network case by characterizing Yershov's allegations in a much more favorable way for the plaintiff. 

According to the opinion (read here in full), "While he paid no money, access was not free of a commitment to provide consideration in the form of that information, which was of value to Gannett. And by installing the App on his phone, thereby establishing seamless access to an electronic version of USA Today, Yershov established a relationship with Gannett that is materially different from what would have been the case had USA Today simply remained one of millions of sites on the web that Yershov might have accessed through a web browser."

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