Mark Ellis v. The Cartoon Network, Inc.
803 F.3d 1251
| 11th Cir. | 2015Background
- Plaintiff Mark Ellis downloaded Cartoon Network’s free CN mobile app on an Android smartphone and viewed freely available video clips without creating an account or paying.
- Cartoon Network tracked users via Android ID (a persistent device identifier) and transmitted each user’s Android ID plus a record of videos viewed to third‑party analytics company Bango.
- Bango allegedly can link Android IDs to particular individuals by combining the IDs with other data sources.
- Ellis sued under the Video Privacy Protection Act (VPPA), alleging Cartoon Network (a "video tape service provider") disclosed his "personally identifiable information" and contending he was a "subscriber" (hence a "consumer") under the VPPA.
- The district court dismissed: it found Ellis was a subscriber but held the Android ID plus viewing history was not "personally identifiable information" as disclosed because a third party needed extra steps to reidentify him.
- On appeal the Eleventh Circuit reviewed the subscriber question de novo and affirmed dismissal on the alternative ground that Ellis was not a "subscriber" under the VPPA; the court declined to decide the scope of "personally identifiable information."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a person who downloads and uses a free mobile app to view freely available videos is a "subscriber" (thus a "consumer") under the VPPA | Ellis: downloading and using the CN app made him a subscriber under § 2710(a)(1) | Cartoon Network: mere free use without registration, payment, account, or ongoing commitment does not create a subscription relationship | Held: Not a subscriber; free download/use without more does not create the commitment/relationship implied by "subscriber" |
| Whether the Android ID + viewing history qualifies as "personally identifiable information" under the VPPA | Ellis: Android ID combined with viewing records is personally identifiable because third parties can reidentify users | Cartoon Network: such data does not, by itself, identify a person; reidentification requires additional steps by the recipient | Court declined to decide; left the issue for another day (expressed no view) |
Key Cases Cited
- Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618 (7th Cir. 2014) (background on VPPA origins and scope)
- Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis dissent on privacy; cited for privacy principle)
- Timson v. Sampson, 518 F.3d 870 (11th Cir. 2008) (standard of review for Rule 12(b)(6) factual allegations)
- Bell Atlantic Corp. v. Twombly, 544 U.S. 550 (2007) (plausibility standard for pleadings)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard and reasonable inference requirement)
- United States v. Pistone, 177 F.3d 957 (11th Cir. 1999) (review of statutory interpretation de novo)
- Centel Cable Television Co. Fla. v. Thomas J. White Dev. Corp., 902 F.2d 905 (11th Cir. 1990) (de novo review of statutory interpretation)