Ryan Perry v. Cable News Network, Inc., 854 F.3d 1336

Perry downloaded and used the free CNN mobile app on his iPhone beginning in 2013 and viewed video content via the app. He never registered with or paid CNN or provided CNN personal signup information.
Perry alleges CNN tracked viewing activity and transmitted that data plus his device MAC address to a third-party analytics firm, Bango, which can link MACs to personally identifying information. Perry did not consent to disclosures.
Perry sued CNN under the Video Privacy Protection Act (VPPA), seeking statutory and punitive damages and injunctive relief as a putative class action.
The district court dismissed under Rule 12(b)(6), holding Perry was not a VPPA “consumer/subscriber” and the data alleged was not “personally identifiable information”; the court denied leave to amend as futile.
On appeal, the Eleventh Circuit affirmed: it held Perry has Article III standing based on the VPPA disclosure injury, but Perry is not a VPPA “subscriber” under controlling precedent (Ellis), so his VPPA claim fails and amendment would be futile.

Issue	Perry’s Argument	CNN’s Argument	Held
Article III standing — whether alleging only a statutory VPPA disclosure is a concrete injury	VPPA statutory violation alone suffices; no additional harm required	Statutory violation alone is insufficient after Spokeo absent concrete injury	Perry has standing: VPPA disclosure is a concrete, historically cognizable privacy injury (Spokeo factors, privacy tort analogies)
VPPA liability — whether Perry is a “consumer/subscriber” under 18 U.S.C. § 2710(a)(1) such that CNN can be liable for disclosures	Perry would amend to allege he also subscribed to CNN via his cable package and accessed app features (live TV) tied to that subscription, making him a subscriber	Downloading/using a free app and having a separate cable subscription do not create an ongoing relationship with CNN; Ellis controls	Perry is not a subscriber: free app use and indirect cable relationship do not establish the required ongoing commitment; amendment would be futile

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (U.S. 2016) (concrete-injury requirement for statutory claims; consider history and Congress’s judgment)
Ellis v. Cartoon Network, Inc., 803 F.3d 1251 (11th Cir. 2015) (free-app users are not VPPA "subscribers" absent ongoing commitment)
In re Nickelodeon Consumer Privacy Litigation, 827 F.3d 262 (3d Cir. 2016) (VPPA disclosure is a concrete privacy injury)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (standing framework)
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (U.S. 2000) (injury-in-fact must be concrete and particularized)
Havens Realty Corp. v. Coleman, 455 U.S. 363 (U.S. 1982) (statutory rights can confer injury-in-fact)
United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (U.S. 1989) (recognition of privacy interest in preventing disclosure of personal information)