In Yershov v. Gannett Satellite Information Network, Inc., 2016 U.S. App. LEXIS 7791 (1st Cir. Apr. 29, 2016), the First Circuit held that users of free mobile applications, or “apps,” can bring a claim against an online service provider if the provider shares with third-party data analytics companies the users’ personally identifiable information and information about videos the users viewed on the app. The court’s holding departs from the majority of courts that have ruled on this issue and reached the opposite conclusion.
Alexander Yershov, the plaintiff, installed a USA Today mobile app on his Android phone. In a class action complaint, Yershov alleges that every time an app user viewed a video, the defendant, Gannett Satellite Information Network, Inc. (USA Today’s parent), shared with a third-party data analytics company: (1) information about the video the user viewed; (2) the user’s GPS coordinates; and (3) the unique identification number of the user’s smartphone, called an “Android ID.”
The Video Privacy Protection Act (“VPPA”), 18 U.S.C. § 2710, under which Yershov brought his claim, prohibits “video tape service providers” from disclosing “personally identifiable information” (“PII”) concerning a “consumer” to third parties. 18 U.S.C. § 2710(b). Prior district and appellate courts’ decisions on this statute have turned on defining the latter two terms—first, whether the above information that Gannett disclosed constituted “personally identifiable information,” and, second, whether free app users qualify as “consumers.” Continue Reading