Plaintiffs continue to struggle in their attempts to apply the Video Privacy Protection Act to 21st-century technology, with a Georgia federal court judge dismissing a putative class action against CNN.
A CNN app maintains a record each time a user views a news story, video clip, or headline. When a user closes the app, a complete record of the user's activities and a media access control (MAC) address is sent to a third-party data analytics company that specializes in tracking the behaviors of individual users via the Internet and mobile applications.
Ryan Perry downloaded the CNN app in early 2013 to read news stories and watch video clips. According to his complaint, CNN had not obtained his consent to disclose any of his personally identifiable information to third parties and the transfer of his viewing history and MAC address violated the VPPA.
CNN countered with a motion to dismiss, arguing that Perry was not a "consumer" as defined by the statute, nor was the data passed along "personally identifiable information."
U.S. District Court Judge Eleanor L. Ross agreed. The VPPA defines a consumer as "any renter, purchaser, or subscriber of goods or services from a video tape service provider," while the term "personally identifiable information" includes "information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider."
In reaching its conclusion, the court relied on a "strikingly similar" case from the Eleventh Circuit Court of Appeals, where the federal appellate panel held that an individual who viewed video content on Cartoon Network's free mobile app was not a consumer within the meaning of the statute.
Like the plaintiff in that case, Perry did not sign up for or establish an account with CNN, did not make any payments or establish a profile with the app, and did not make any commitment or establish any relationship that would allow him to have access to exclusive or restricted content.
"[T]his Court finds that Plaintiff does not qualify as a subscriber," Judge Ross wrote. "Plaintiff has not alleged that he did anything other than watch video clips on the CNN app, which he downloaded onto his iPhone for free. Further, there is no indication that he had any ongoing commitment or relationship with Defendants, such that he could not simply delete the CNN app without consequences."
The court rejected the plaintiff's argument that CNN expressly designed the app to create an ongoing relationship with its users, noting that CNN's motivation would not alter its conclusion. Nor did Perry qualify as a "renter" under the statute, as the plain and ordinary meaning of the term implies the payment of money, the court added. "Because the CNN app was free of charge, and Plaintiff has not indicated that he made any sort of payments to Defendants, he is not a 'renter.'"
Judge Ross also found that Perry's MAC address and associated video logs did not qualify as personally identifiable information. An anonymous string of numbers, such as the MAC address, is insufficient to qualify under the statute, the court said, citing decisions from courts across the country in VPPA suits that found the transmission of device serial numbers, an IP address and browser setting, and a unique identifier without more did not violate the statute.
"Plaintiff has merely pled that Defendants disclosed his MAC address along with the viewing history tied to that address," the court wrote. "He has not, however, pled any facts to establish that the video history and MAC address were tied to an actual person and disclosed by Defendants. Because Plaintiff has not established that Defendants disclosed any personally identifiable information, his claim must fail."
To read the order in Perry v. Cable News Network, click here.
Why it matters: The Georgia federal court decision joins the growing number of courts that have similarly declined to apply the VPPA to technology such as devices and streaming services, such as Netflix.