Jessica Karmasek Oct. 19, 2015, 2:30pm


ATLANTA (Legal Newsline) - A federal appeals court said in a ruling this month that, under federal law, the free downloading of a mobile app on an Android device to watch free content, without more, cannot be defined as a “subscriber.”

The U.S. Court of Appeals for the Eleventh Circuit, in its Oct. 9 ruling, affirmed the U.S. District Court for the Northern District of Georgia’s order dismissing plaintiff Mark Ellis’ amended complaint against The Cartoon Network Inc.

Users of free mobile apps -- Ellis included -- are not protected by the federal Video Privacy Protection Act, Circuit Judge Adalberto Jordan wrote for a panel that included himself, Circuit Judge Joel Dubina and Richard Goldberg, a judge of the U.S. Court of International Trade, sitting by designation.

Congress enacted the VPPA in 1988 after a newspaper published a profile of U.S. Supreme Court nominee and then D.C. Circuit Judge Robert H. Bork, which contained the titles of 146 films he and his family had rented from a local video store.

Subject to some exceptions that do not apply in the instant case, the VPPA generally prohibits video tape service providers from knowingly disclosing, to a third-party, “personally identifiable information concerning any consumer.”

The act provides a federal cause of action for aggrieved “consumers,” allowing them to recover actual or liquidated damages of at least $2,500, punitive damages, attorneys’ fees and costs, and other appropriate preliminary and equitable relief.

Under the VPPA, the term “consumer” means any renter, purchaser or subscriber of goods or services from a video tape service provider.

In 2012, Congress amended the VPPA to reflect “the realities of the 21st Century.” Essentially, the changes allowed consumers greater flexibility to share their video viewing preferences, while maintaining their privacy, by clarifying that video tape service providers may obtain informed, written consent of consumers on an ongoing basis via the Internet.

However, the changes did not alter the VPPA’s definitions of “consumer” or “personally identifiable information.”

In his case against Cartoon Network, Ellis takes issue with its tracking of his viewing history and sharing of it with a third-party data analytics company called Bango.

Cartoon Network provides a free mobile application, or app, for smartphones called the CN app. Individuals can download the app to watch clips or episodes of TV shows on Cartoon Network, including “Tom and Jerry,” “Looney Toons,” “Pokémon,” and “Transformers.” CN app users can also log in with their television provider information to view additional content.

If, however, a user wants to view the freely available content on the CN app, he or she does not have to create a login account. The user simply can view the content on the app’s home screen without having to provide any information to Cartoon Network. The CN app also does not ask users for their consent to share or otherwise disclose personally identifiable information to third parties.

Cartoon Network identifies and tracks an Android smartphone user on the CN app through his or her mobile device identification or Android ID, defined as “a 64-bit number (hex string) that is randomly generated when a user initially sets up his device and should remain constant for the lifetime of the user’s device.”

Cartoon Network keeps track of an Android user’s viewing history by maintaining a record of every video clip or episode viewed by the user via the Android ID number. Cartoon Network then sends this information to Bango.

Each time a user closes out of the CN app on his Android device, a complete record -- including the user’s Android ID and a list of the videos he viewed -- is sent to Bango.

Bango specializes “in tracking individual behaviors across the Internet and mobile applications.” The company claims that its technology “reveals customer behavior, engagement and loyalty across and between all websites and apps.”

So when Cartoon Network sends Bango the Android ID of a CN app user along with his video viewing history, Bango associates that video history with a particular individual.

In 2013, Ellis downloaded Cartoon Network’s free CN app on his Android smartphone to watch video clips.

A year later, he filed a proposed privacy class action against Cartoon Network under the VPPA. He alleges he was a “subscriber” of Cartoon Network and therefore a “consumer” under the act, and claims Cartoon Network violated the law when it disclosed his “personally identifiable information” -- his Android ID and his video viewing records -- to Bango.

Cartoon Network moved to dismiss Ellis’ amended complaint on a number of grounds, and the district court granted that motion.

The district court concluded Ellis was a “subscriber,” and therefore a “consumer,” under the VPPA, and that he had pled a cognizable injury.

The court ruled, however, that Ellis’ Android ID and video viewing records were not “personally identifiable information” under the VPPA because they did not, “in [their] own right, without more, link an actual person to actual video materials.”

Reasoning that the emphasis of “personally identifiable information” in the act was “on disclosure, not comprehension by the receiving person,” the court held there was no violation of the VPPA because Bango had to take additional steps to match the Android ID to Ellis.

Although the district court acknowledged that an Android ID is “unique to each user and device,” it is not akin to a name.

The Eleventh Circuit declined to take up the term “personally identifiable information.”

“We agree with the district court that payment is not a necessary element of subscription,” Jordan wrote for the circuit’s three-judge panel. “The term “subscriber’ is not preceded by the word ‘paid’ in § 2710(a)(1) of the VPPA, and there are numerous periodicals, newsletters, blogs, videos and other services that a user can sign up for (i.e., subscribe to) and receive for free. Payment, therefore, is only one factor a court should consider when determining whether an individual is a ‘subscriber’ under the VPPA.

“So the fact that Mr. Ellis did not pay Cartoon Network to view videos on its CN app does not prevent him from being a ‘subscriber’ under the Act. But his merely downloading the CN app for free and watching videos at no cost does not make him a ‘subscriber’ either.”

Congress, the Eleventh Circuit noted, could have employed broader terms in defining “consumer” when it enacted the VPPA -- perhaps “user” or “viewer” -- or when it later amended the act -- perhaps using “a visitor of a website or mobile app” -- but it did not.

“Mr. Ellis did not sign up for or establish an account with Cartoon Network, did not provide any personal information to Cartoon Network, did not make any payments to Cartoon Network for use of the CN app, did not become a registered user of Cartoon Network or the CN app, did not receive a Cartoon Network ID, did not establish a Cartoon Network profile, did not sign up for any periodic services or transmissions, and did not make any commitment or establish any relationship that would allow him to have access to exclusive or restricted content,” the panel explained in its 15-page opinion. “Mr. Ellis simply watched video clips on the CN app, which he downloaded onto his Android smartphone for free.

“In our view, 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. Importantly, such a user is free to delete the app without consequences whenever he likes, and never access its content again. The downloading of an app, we think, is the equivalent of adding a particular website to one’s Internet browser as a favorite, allowing quicker access to the website’s content.”

Linn Freedman, who practices in data privacy and security law and complex litigation at the Rhode Island office of Robinson+Cole, wrote in a post on the firm’s Data Privacy + Security Insider blog that the Eleventh Circuit’s decision has weight.

“The significance of this ruling is that there has been a plethora of class action litigation against companies who disclose information about users of mobile apps without their consent,” she explained.

A similar class action lawsuit was filed against CNN over its mobile app in an Illinois federal court last year.

Freedman said the Eleventh Circuit’s ruling could give plaintiffs’ attorneys looking to file similar lawsuits, in particular, pause.

“[It’s] good news for companies that offer free mobile apps,” she wrote. “[But] bad news for plaintiffs’ class action attorneys.”

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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