Nossaman LLP – The Northern District of Georgia recently granted CNN’s motion to dismiss a consumer class action that alleged CNN committed a violation of the Video Privacy Protection Act (“VPPA”), 18 U.S.C. § 2710. Perry v. Cable News Network, Inc., Case No. 1:14-cv-02926-ELR, *2 (N.D. Ga. Apr. 20, 2016). In so doing, the Perry court followed a line of favorable cases for online video providers. While further attacks on the collection and disclosure of such information will no doubt be launched, courts have thus far found little trouble dispensing with the “free app” cases under the VPPA.
The plaintiff, Ryan Perry, alleged that CNN’s free mobile device application (the “CNN App”) “maintains a record of each time a user views a news story, video clip, or headline” and improperly discloses that information on to Bango, a data analytics company “specializing in tracking individual user behaviors via the Internet and mobile applications.” Id.
According to Perry, CNN’s disclosure of user information violated the VPPA. The VPPA was the legislative response to the widely condemned newspaper publication of then-Supreme Court nominee Judge Robert Bork’s video rental history. In 1987, a reporter for a local D.C. weekly newspaper obtained a list of the video tapes that Bork and his family rented over the previous two years. While Judge Bork’s video-watching proclivities were anything but salacious, the disclosure of this information was swiftly denounced. Senator Leahy, who subsequently drafted the VPPA, stated during Judge Bork’s nomination hearings:
[I]n an era of interactive television cables, the growth of computer checking and check-out counters, of security systems and telephones, all lodged together in computers, it would be relatively easy at some point to give a profile of a person and tell what they buy in a store, what kind of food they like, what sort of television programs they watch, who are some of the people they telephone.
I think that is wrong. I think that really is Big Brother, and I think it is something that we have to guard against. [Privacy] is not a conservative or a liberal or moderate issue. It is an issue that goes to the deepest yearnings of all Americans that we are free and we cherish our freedom and we want our freedom. We want to be left alone.
The VPPA prohibits the disclosure of customer private information by “video tape service providers” (those “engaged in the business…of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials”). 18 U.S.C. § 2710(a)(4). The VPPA defines personally identifiable information as “information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.” 18 U.S.C. § 2710(a)(3).
The Perry court found two independent grounds to dismiss the suit. Id. at 5-10. First, the court found that the plaintiff did not qualify as a “consumer” under the VPPA. Id. at 8. The VPPA defines consumers as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” 18 U.S.C. § 2710(a)(1). The court found that Perry did not qualify as a “renter, purchaser, or subscriber” of the CNN App because he did not pay for it and he had no “ongoing commitment or relationship with Defendants, such that he could not simply delete the CNN App without consequences.” Id. at 6-7.
Second, the court found that an anonymous string of numbers, such as a MAC address, does not qualify as personally identifiable information. Id. at 10. Personal information must actually link a specific person with actual video choices. Id. at 8. Where the alleged transgression consists of the disclosure of a MAC address, anonymous username, IP address, or the like, that does not rise to the level of personally identifiable information as contemplated by the VPPA. Id. at 10.