Yershov v. Gannett Satellite Information Network, Inc.
104 F. Supp. 3d 135
D. Mass.2015Background
- Plaintiff Alexander Yershov sued Gannett (publisher of USA Today) under the Video Privacy Protection Act (VPPA), alleging the USA Today mobile app transmits users’ video-viewing records, GPS coordinates, and the device Android ID to Adobe, a third-party analytics company.
- Yershov alleges he never consented to disclosure and that linking the Android ID and viewing record allows Adobe to identify users and associate watch history with profiles.
- The putative class is: all U.S. persons who used the USA Today App to watch videos and had their PII transmitted to Adobe.
- Gannett moved to dismiss under Fed. R. Civ. P. 12(b)(6), arguing (1) the data disclosed is not "personally identifiable information" (PII) under the VPPA, (2) Yershov is not a VPPA "consumer" (subscriber), and (3) lack of standing.
- The court evaluated statutory text, legislative history, and recent district-court decisions about whether device identifiers and related context constitute PII and whether app users are "subscribers."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Android ID + GPS + video record disclosed to Adobe is "personally identifiable information" under the VPPA | The combination identifies a person by enabling Adobe to link device IDs to profiles and thus links a person to specific videos | Android ID is an identifier of a device (not a person) and, standing alone, cannot identify a person without additional linking information | The court held the Android ID + GPS/video context qualifies as PII under the VPPA (context can render an identifier personally identifying) |
| Whether plaintiff is a VPPA "consumer" as a "subscriber" | Downloading, installing, and watching videos via the free app makes Yershov a subscriber/consumer protected by the VPPA | App users are merely "users," not subscribers; no payment, registration, commitment, periodic delivery, or restricted access | The court held Yershov is not a "subscriber"; free, unregistered app use does not meet the ordinary meaning of subscription, so VPPA claim fails on this ground |
| Applicability of contrary district-court decisions (Hulu, Nickelodeon, Ellis) | Those cases are distinguishable or wrongly construe VPPA PII; context matters and identifiers can be PII | Reliance on Hulu/Nickelodeon/Ellis to argue anonymized IDs are not PII without more | The court rejected the broad holdings of those cases here, finding their narrow "without more" formulation unpersuasive when context (GPS, linking) exists |
| Whether dismissal is appropriate at pleading stage (standing/injury) | Alleged disclosure of PII to Adobe suffices to plead injury/VPPA violation | Argues failure to state a claim; also questions standing/injury | The court granted dismissal based on Yershov not being a "subscriber"; it did not decide the standing/injury question |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading must be plausible; legal conclusions not taken as true)
- Riley v. California, 134 S. Ct. 2473 (2014) (smartphones contain vast quantities of personal information)
- In re Pharmatrak, Inc., 329 F.3d 9 (1st Cir. 2003) (examples of personally identifiable information in privacy context)