The vast majority of courts confronted with “free app” cases under the Video Privacy Protection Act (“VPPA”) have dismissed those claims.  A recent First Circuit decision, however, signals a change in that trend.  http://media.ca1.uscourts.gov/pdf.opinions/15-1719P-01A.pdf

The District Court Dismisses the Complaint

In Yershov v. Gannett Satellite Information Network, Inc., 2016 U.S. App. LEXIS 7791 (1st Cir. Apr. 29, 2016), the Plaintiff filed a putative class action under the VPPA against Gannett, an international media company that produces, among other things, online content through a mobile software application called the USA Today Mobile App (the “App”).   The Plaintiff alleged that each time he viewed a video on the App, Gannett sent information to a third-party data analytics company about his viewing habits, including the videos he watched, the GPS coordinates of his phone at that time and his unique Android ID.  Using this information, the data analytics company would create a “digital dossier” to help Gannett created targeted advertisements.

The District Court dismissed the Complaint. While it found that the information collected by Gannett was “personally identifiable information” (“PII”), it determined that Plaintiff was not a “consumer” under the VPPA in large part because the App was free to download.  The District Court’s ruling followed a number of decisions, including the Eleventh Circuit’s ruling in Ellis v. Cartoon Network, Inc., 803 F.3d 1251 (11th Cir. 2015).

The First Circuit Reverses

The First Circuit reversed the District Court ruling, and remanded the case for further proceedings. The First Circuit agreed with the District Court that the information collected constituted PII.  Critical to the Court’s determination was the collection of Yershov’s GPS coordinates and his unique Android ID.  The Court imagined a situation in which Gannett disclosed a user’s video history on a single device at two sets of specified GPS coordinates.  In light of “how easy it is to locate a GPS coordinate on a street map, this disclosure would enable most people to identify what are likely the home and work addresses of the viewer.” Id. at *8.

The First Circuit reversed the lower court’s decision because it determined that Plaintiff qualified as a “consumer” under the VPPA. See  18 U.S.C. § 2710(a)(1) (“consumer” is defined to mean “any renter, purchaser, or subscriber of goods or services from a video tape service provider”).  The court determined that Plaintiff was a “subscriber” within the meaning of the VPPA, and declined to interpret that provision as requiring some form of monetary payment. Id. at *13.

The Yershov court distinguished this case from the Ellis ruling, where the Eleventh Circuit defined the term “subscriber” to “involve some or [most] of the following [factors]: payment, registration, commitment, delivery, [expressed association/] and/or access to restricted content.” Ellis, 803 F.3d at 1256.  In contrast, the Yershov court noted that the Plaintiff was required to provide personal information (his Android ID and GPS location), so while he did not pay for the use of the App, “access was not free of a commitment to provide consideration in the form of that information, which was of value to Gannett.” Id. at *14.

What does this mean for future consumer class actions under the VPPA? It certainly seems that this gives mobile app user plaintiffs a big leg up.  After all, any plaintiff could argue that they were not “free of commitment” when downloading a mobile app, whether they paid for it or not.  Perhaps courts will look at this decision as fact specific, and determine that it only applies where phone identification and GPS records are collected.  But we’ll just have to wait and see.