Yershov v. Gannett Satellite Information Network, Inc.
2016 U.S. App. LEXIS 7791
| 1st Cir. | 2016Background
- Yershov downloaded and used the USA Today Mobile App on an Android device and watched video clips without consenting to third-party disclosures.
- Each time a video was viewed, Gannett transmitted to Adobe the video title, the device's GPS coordinates at viewing, and a persistent Android ID tied to the device/user.
- Adobe aggregates device identifiers, location, and other data to create identifiable user profiles that can be linked to names, addresses, and other PII.
- Yershov sued under the Video Privacy Protection Act (VPPA), alleging Gannett knowingly disclosed "personally identifiable information" (PII) about a "consumer" to a third party.
- The district court held the disclosed data was PII but dismissed the complaint for failure to allege Yershov was a "consumer" (i.e., a renter, purchaser, or subscriber); the First Circuit reviewed a Rule 12(b)(6) dismissal de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the disclosed data qualifies as VPPA "personally identifiable information" | The combination of video titles, GPS coordinates, and Android ID reasonably identifies a person and thus is PII | The data are not direct names and therefore do not qualify as PII | Court: The data are PII because they reasonably and foreseeably identify the viewer when linked by Adobe |
| Whether Yershov is a VPPA "consumer" as a "subscriber" | Installing/using the App to receive Gannett's video content establishes a subscription-like relationship even absent payment | Gannett: mere download/use of a free app is not a subscription; no payment, registration, or account means no subscriber status | Court: Allegations plausibly show Yershov was a "subscriber"—subscriber need not require payment; complaint survives 12(b)(6) |
| Proper scope of "subscriber"—must it include payment or commitment? | "Subscriber" includes receiving access to electronic services; payment not required; electronic access parallels physical subscription | Payment/commitment should be required; passive app use is more like casual web browsing | Court: Declined to read payment as required; "subscriber" can include app users who accept access in exchange for providing valuable device/data |
| Whether Ellis v. Cartoon Network controls | N/A (Yershov distinguishes facts) | Ellis held a free-app user was not a subscriber under VPPA | Court: Distinguished Ellis on facts (presence of device identifiers, GPS, and data transmission here); Ellis not controlling |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for Rule 12(b)(6))
- In re Fahey, 779 F.3d 1 (interpretation that "includes" signals a non-exhaustive statutory definition)
- Ellis v. Cartoon Network, 803 F.3d 1251 (11th Cir.) (free-app user found not a VPPA "subscriber" in that case)
- Nat'l Org. for Marriage v. McKee, 649 F.3d 34 (statutory interpretation should avoid rendering terms superfluous)
- Barr v. United States, 324 U.S. 83 (congressional language can cover unanticipated applications)