Harvard Law Review

Statutory Interpretation - the Video Privacy Protection Act - Eleventh Circuit Limits the Scope of "Subscriber" for VPPA Protections


The Video Privacy Protection Act (1) (VPPA), which prevents "[w]rongful disclosure of video tape rental or sale records," (2) was enacted in 1988 by Congress in reaction to a newspaper publishing then-D.C. Circuit Judge Robert Bork's video rental history during his Supreme Court confirmation hearings. (3) The VPPA, originally aimed at traditional brick-and-mortar video rental stores such as Blockbuster, has seen a newfound applicability in the modern era of streaming video and "big data" analytics. (4) Recently, in Ellis v. Cartoon Network, Inc., (5) the Eleventh Circuit held that a person who downloads and uses a free mobile application on their smartphone is not a "subscriber" under the VPPA, and is therefore beyond the Act's protections. (6) The court's interpretation of "subscriber" limits the scope of whom the VPPA's protections apply to by focusing on formal indicia of "commitment" such as logging in, registering, or paying for an application. This analysis, necessitated by neither precedent nor logic, does not articulate any sensible distinction between such behavior and installing an application. The court's interpretation excludes a significant segment of consumers from the VPPA's protections, allowing these protections to be evaded too easily by content providers--consequences directly at odds with the VPPA's purpose of protecting personal privacy. Moreover, had the court included these consumers as "subscribers," it would have had an opportunity to focus on the important question of what constitutes "personally identifiable information" for smartphone applications in triggering VPPA protections.

In 2013, Mark Ellis downloaded Cartoon Network's free mobile application ("CN app") onto his Android smartphone. (7) The CN app allows users to watch clips and episodes of TV shows on Cartoon Network, including popular titles such as "Looney Toons" and "Pokemon." (8) Users can access freely available content without any login information, or they can log in using their television provider information in order to access additional content. (9)

Every Android smartphone user is assigned a unique "Android ID" -a random string of letters and numbers--that remains constant for the lifetime of the user's device. (10) The CN app tracks each user's viewing history and, at the end of any viewing session, sends this history along with the user's Android ID to Bango, a third-party data analytics company. (11) The CN app does not at any time prompt users to consent to share or disclose this information with any third party. (12) Bango specializes in tracking customer behavior across various platforms, compiling information about specific users from a wide variety of websites, applications, and other sources. (13) As the court's opinion noted, Bango is "smarter than the average bear," and able to link Android IDs to specific users and add information such as that gathered from the CN app to a user's profile. (14) In other words, Bango is able to associate a user's viewing history with that specific viewer simply from the user's ostensibly anonymous Android ID.

The VPPA generally imposes liability upon any "video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider." (15) Any aggrieved consumer is provided a cause of action under the Act and can recover actual or liquidated damages of at least $2500, punitive damages, attorneys' fees and costs, and other equitable relief. (16) The VPPA defines "personally identifiable information" as including "information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider" (17) and "consumer" as "any renter, purchaser, or subscriber of goods or services from a video tape service provider. (18) These two particular definitions were at issue in Ellis's case, as Cartoon Network argued in its motion to dismiss that Ellis was not within the scope of the VPPA both because he was not a "consumer" and because the information that Cartoon Network disclosed was not "personally identifiable information." (19)

Ellis brought a putative class action against Cartoon Network "on behalf of himself and others whose Android IDs were disclosed to Bango," alleging that the Android IDs constituted personally identifiable information that Cartoon Network disclosed in violation of the VPPA. (20) Ellis sought injunctive and monetary relief on behalf of the putative class. …

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