Circuit Split on Video Privacy Protection for Smart Device Free App Users

Alexander Yershov sued Gannett, owner of USA Today, for Video Privacy Protection Act (VPPA) violations.  Yershov alleged that the USA Today Mobile App he downloaded and installed on his Android device collected and sent his personally identifiable information (PII) to Adobe, a third party, without Yershov’s consent.

The district court ruled that Gannett disclosed Yershov’s PII to Adobe, but that Yershov was not a consumer protected by the VPPA.  The First Circuit Court of Appeals held that Gannett distributed Yershov’s PII and that Yershov was a consumer under the VPPA, reversing the district court’s dismissal of the complaint.  There is now a circuit split on this issue.  My post Users of Free Video Apps Can Forget About Video Privacy Protection discusses the Eleventh Circuit’s ruling that the smartphone video app user was not entitled to VPPA protection.

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Users of Free Video Apps Can Forget About Video Privacy Protection

Can a person who downloads and uses a free mobile app on her smartphone sue the app provider for invading her privacy when the app provider shares her viewing history with a third party?  No, says the Eleventh Circuit Court of Appeals.

The Video Privacy Protection Act (VPPA), 18 U.S.C. §2710, prohibits video tape service providers from knowingly disclosing personally identifiable information about a consumer to a third party.  Consumers whose rights have been violated under the VPPA can recover damages against the offending video tape service provider.

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Netflix Not Responsible for Nosy Friends and Family Viewing History and Queue

This case is interesting and significant because it is both a case of first impression in the Ninth Circuit and involves the Video Privacy Protection Act (VPPA), which has entertaining historical roots.

Meghan Mollett is a Netflix subscriber, who, along with other Netflix subscribers, brought a class action claim against Netflix for violating the VPPA with the Netflix video streaming service.  For instant streaming subscribers, Netflix automatically displays a list of recently watched video titles, the subscriber’s queue and lists of recommended video titles on the subscriber’s home page.  Netflix appears on any Netflix-ready device without the need to log in.  The contents of the home page are therefore available for viewing by anyone who is present when a Netflix subscriber accesses her account through her Netflix-ready device, including family members, friends and guests.  The class action plaintiffs alleged that these disclosure violate the VPPA.

Netflix argued that the personal information disclosures are made to the subscribers themselves and are therefore permissible and that any disclosures to third parties were not knowingly made, so don’t violate the VPPA.  The district court granted Netflix’s motion to dismiss for failure to state a claim.  The Ninth Circuit affirmed the district court’s decision.

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VPPA Damages Remedy Not Available in Class Action Suit Over Personally Identifiable Information

The question before the 7th Circuit in this case was whether the Video Privacy Protection Act (VPPA), 18 U.S.C. §2710, provides a civil damages remedy for violating subsection (e) of the Act, which requires the destruction of personally identifiable information as soon as practicable.  Plaintiffs are consumers who brought a class action suit against Redbox for failure to comply with subsection (e) of the VPPA.  Redbox rents DVDs, Blu-ray discs and video games to consumers from automated retail kiosks. 

The VPPA is codified in the U.S. Code under Title 18, Crimes and Criminal Procedure, Chapter 121, Stored Wire and Electronic Communications and Transactional Record Access.  Subsection (d) provides for the exclusion of personally identifiable information that is not obtained according to the statute as “evidence in any trial, hearing, arbitration, or other proceeding before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision of a State.”  Accordingly, the VPPA does not provide for criminal fines or incarceration for violators.  However, subsection (c) does provide for damages and attorneys’ fees in a civil action.  The court’s discussion focused on whether the civil remedy provided in subsection (c) applies only to violations of subsection (b) and not to violations of subsection (e), since subsection (e) comes after subsection (c) and the subsection (c) civil remedy does not come after all of the Act’s prohibitions.

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