The First Circuit Court of Appeals, in its recent decision in Yershov v. Gannett Satellite Information Network, Inc., breaks new ground, extending the reach of the Video Privacy Protection Act of 1988 (VPPA) to video content delivered to consumers through a mobile app. In doing so, the First Circuit parts ways with the Eleventh Circuit in Ellis v. Cartoon Network, Inc., the only other federal circuit court of appeals yet to address whether the VPAA (also known as the “Bork Bill”) applies to mobile apps.

The First Circuit in Yershov, reversing the decision of the district court below, held that the plaintiff’s acts of downloading and using a free mobile app from Gannett were sufficient to make him a “subscriber” under the VPPA, at least for purposes of defeating a Rule 12(b)(6) motion to dismiss. In so holding, the First Circuit expressly rejected the presumption made by the Eleventh Circuit in Ellis that downloading a mobile app “is the equivalent of adding a particular website to one’s Internet browser as a favorite.”

Significantly, the First Circuit in Yershov also affirmed the findings of the district court below that the information Gannett disclosed concerning the plaintiff was “personally identifiable information” (PII) under the VPPA.

As stated by Circuit Judge Kayatta:

“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. 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. And by installing the App on his phone, thereby establishing seamless access to an electronic version of USA Today, Yershov established a relationship with Gannett that is materially different from what would have been the case had USA Today simply remained one of millions of sites on the web that Yershov might have accessed through a web browser.”

In contrast, in Ellis, in similar circumstances, the Eleventh Circuit found that the plaintiff was not a “subscriber” under the VPPA, construing the latter term narrowly to “involve[ ] some type of commitment, relationship, or association (financial or otherwise) between a person and an entity.” In explaining its conclusion, the Ellis court stated that the plaintiff did not “‘sign up for or establish an account,’ ‘make any payments,’ ‘become a registered user,’ ‘receive a Cartoon Network ID,’ ‘establish a Cartoon Network profile,’ ‘sign up for any periodic services or transmissions,’ or ‘make any commitment or establish any relationship that would allow him to have access to exclusive or restricted content.’”

The Yershov decision, and its extension of the VPPA to mobile apps, is not surprising. The statute is written in technology neutral terms, and it is well established that the VVPA applies to online video service providers that stream movies and other video content via the Internet, such as Netflix and Hulu. See, e.g., In re Hulu Privacy Litigation.

The potential implications of Yershov, however, are quite significant. If a user of a mobile app is a “subscriber” within the meaning of the VPPA, the provider of video content delivered through the mobile app will be required to obtain informed, written consent from the user before knowingly disclosing PII to a third party, including ad networks, data analytics companies, and social networks. However, the precise factual circumstances under which such a user will be considered a “subscriber” is still an open question, even in the First Circuit.

As stated by Judge Kayatta:

“Our actual holding, in the end, need not be quite as broad as our reasoning suggests. . . . As is often true with Rule 12(b)(6) motions, further development of the facts may cast that which is alleged in a different light. For example, does Gannett itself classify those who access its content through the App differently from those who access its website only? Are the content and format the same through either channel? Does access through the App generate value for Gannett that website access does not? Is Yershov correct about the extent to which Adobe foreseeably can identify him? Answers to these and similar questions may enable a more refined, and possibly different, conclusion on the ultimate question of whether Gannett has violated the VPPA. For now, though, the facts that Yershov alleges, together with reasonable inferences drawn from those facts, plausibly describe a relationship between Yershov and Gannett, combined with a disclosure by Gannett that ran afoul of the VPPA.”

Other open questions in this new mobile app frontier include the types of information that may fall within the meaning of PII, what constitutes a “knowing” disclosure of PII, and the method by which a provider lawfully may obtain the informed, written consent of consumers.