Antitrust Law Daily Wrap Up, PRIVACY—1st Cir.: User of free USA Today mobile app was ‘subscriber’ for VPPA, (May 6, 2016)

By Edward L. Puzzo, J.D.

The U.S. Court of Appeals in Boston has ruled that a user of a free USA Today mobile app for his Android smartphone was a "subscriber" for purposes of pursuing a claim that the dissemination of his personal information to a third party violated the Video Privacy Protection Act (Yershov v. Gannett Satellite Information Network, Inc., April 29, 2016, Kayatta, W.).

Alexander Yershov brought a putative class action against Gannett Satellite Information Network, Inc., alleging that its USA Today Mobile App (application) for Android smartphones disclosed personal information about him to a third party without his consent, in violation of the Video Privacy Protection Act of 1988 (VPPA).

According to Yershov, when the app is opened for the first time after being downloaded from the Google Play Store, the app asks for consent to push or display notifications to the user, but does not ask for consent to disclose anything about the user to third parties. Nevertheless, each time the user views a video, it was alleged, Gannett sends to a third party, Adobe Systems Incorporated: (1) the title of the video viewed, (2) the GPS coordinates of the device at the time the video was viewed, and (3) certain identifiers associated with the user's device, such as its Android ID.

Yershov contended that the Android ID is a number uniquely identified with a specific device and specific user of that device. He further contends that Adobe—by using the information sent to it by the USA Today app, combined with information on the user it culls from various sources—can discern a user's name, address, age, income, household structure, online navigation, and transaction history. Adobe then sells the information to advertisers, including Gannett, to use in targeted advertising and for other uses.

The VPPA was passed by Congress, the appellate court explained, to protect personal privacy regarding the rental, purchase or delivery of video and other audio-visual materials. It prohibits the knowing disclosure of a consumer's personally identifiable information (PII).

Personally identifiable information. The district court agreed with Yershov that the type of information that he alleged was disclosed by the USA Today app met the VPPA's definition of "personally identifiable information." However, the district court further ruled that Yershov was not a "renter, purchaser or subscriber" of Gannett's video content. Thus, he did not meet the VPPA's definition of "consumer." The district court therefore dismissed the complaint. Yershov appealed.

Subscriber. In his appeal, Yershov argued that he was a consumer under the VPPA because he was a "subscriber." The court noted that one dictionary definition of "subscription" included "an agreement to receive or be given access to electronic texts or services." Here, the court continued, the dictionary definition was met because Gannett offered—and Yershov accepted—a proprietary mobile device application as a tool for directly receiving access to Gannett's electronic text and videos, without going through other distribution channels.

Monetary payment. The next question was whether the statutory definition should incorporate monetary payment as a necessary element. The court noted that if monetary payment were required to be a "subscriber" under the VPPA, then the first two terms in the phrase "renter, purchaser or subscriber" would be superfluous. Under the philosophy that statutes should be construed so that no word or phrase is considered superfluous, monetary payment should not a necessary element of "subscriber" under the Act.

The court further noted the common practice of introductory subscriptions at no charge. The court could 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 court finally noted that, to use the app, Yershov was required 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. While he paid no money, he was required to provide consideration in the form of that information, which was of value to Gannett.

For these reasons, the court declined to interpret the VPPA as requiring monetary payment. The court held that the transaction described in Yershov's complaint plausibly pleaded a case that the VPPA's prohibition on disclosure applied. The court therefore reversed the district court's ruling and remanded the case for further proceedings.

The case is Civil Action No. 15-1719.

Attorneys: Ryan D. Andrews (Edelson PC) for Alexander Yershov. Jeffrey G. Landis (ZwillGen PLLC) and Heather Burnadette Repicky (Nutter McClennen & Fish LLP) for Gannett Satellite Information Network, Inc., d/b/a USA Today.

Companies: Gannett Satellite Information Network, Inc., d/b/a USA Today

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