Taryn Phaneuf May 18, 2016, 9:15am


BOSTON (Legal Newsline) — A federal appeals court has interpreted who qualifies for protections under a federal privacy law governing video content accessed through mobile applications.

The U.S. Court of Appeals for the First Circuit's recent decision is one that “can’t be ignored,” Jeff Neuburger, an attorney in the New York office of Proskauer who focuses on technology, media and advertising, told Legal Newsline.

The court determined that a user of USA Today’s free app counts as a “consumer” under the Video Privacy Protection Act, requiring the provider to get permission before transmitting certain personal information to a third party to be used for advertising. The ruling came on the heels of an opposite ruling by a federal court in Georgia, making the issue all the more murky for providers wondering if they could be held liable.

“Until there is clarity under the VPPA, it certainly is a risk issue that companies should be aware of,” he said.

Alexander Yershov used the USA Today mobile app to watch video content. According to court documents, each time Yershov watched a video, Gannett sends the title of the video, the device’s GPS coordinates and a unique ID associated with the device to Adobe Systems Inc., a data analytics and online marketing company.

In the suit against Gannett, Yershov accuses the media giant of violating VPPA when it transmitted his phone’s GPS coordinates along with video identification information to a third party.

With some exceptions, the VPPA bans “video tape service providers” from giving a consumer’s “personally identifiable information” to a third-party without consent. The law specifies that PII refers to information that links a person with specific video content. A previous case led to the distinction that an anonymous serial number on a device doesn’t qualify as personal identifying information.

A district court dismissed Yershov’s case after ruling that the information transmitted qualified as personal identifying information, but that the plaintiff couldn’t be considered a consumer. The First Circuit agreed with the district court’s first point, but not with the second. It sent the case back for further litigation.

VPPA says someone who is a renter, purchaser or subscriber of a provider’s goods or services is considered a consumer. Contrary to another court’s ruling, the First Circuit concluded that even though Yershov didn’t have to sign up or pay for an account or be permitted to access restricted content, he still should be considered a consumer.

“To use the app, Yershov did indeed have to provide Gannett with personal information, such as his Android ID and his mobile device's GPS location at the time he viewed a video, each linked to his viewing selections,” the court said. “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.”

Only a few days before the First Circuit made this ruling, a district court judge in Georgia came to a different conclusion, which seemed more in line with the trend, Neuburger said. In a proposed class action suit against CNN, the judge ruled that watching videos on an app downloaded for free doesn't constitute the type of relationship that would make the user a consumer under VPPA.

With differing opinions by the courts, Neuburger said companies should consider getting users’ consent in case later cases are judged like Yershov’s.

“We see many situations in which laws are applied to technologies which were never even imagined at the time the law was drafted. The VPPA is a perfect example, as it was enacted to with videotape (remember those?) rental records,” Neuburger said.

“I think the courts are generally doing a good job in sorting through the issues, and we see a general trend for courts to dig into the technology and data flows to perform their analysis. Companies should do the same – it is important to understand what data is captured, what is shared and how — to anticipate the arguments that could be made on this issue.”

Organizations in this Story

Adobe Systems Incorporated
345 Park Avenue
San Jose, CA 95110

USA Today
7950 Jones Branch Drive
McLean, VA 22102

The Cable News Network (CNN)
190 Marietta Street
Atlanta, GA 30303

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