First Circuit and FTC Address Definitions of “PII,” While Michigan Amends Privacy Law to Remove Statutory Damages

Davis Wright Tremaine LLP

On April 29, 2016, the U.S. Court of Appeals for the First Circuit handed down its widely anticipated opinion in Yershov v. Gannett Satellite Information Network, Inc., in which it expanded the reach of the Video Privacy Protection Act (“VPPA” or “Act”) by endorsing a considerably expanded view of how the statute applies in the digital media context.  In its decision, the court held that (1) “personally identifiable information” (“PII”) includes the GPS coordinates of a device; and (2) a user of a mobile application – even one who does not pay or otherwise register to use the app – qualifies as a “consumer” entitled to the protections of the Act.  Although the information Gannett transferred to a third party also included unique device identifiers (i.e., an Android ID), the court noted that its holding “need not be quite as broad as [its] reasoning suggests,” leaving unanswered the question of whether device identifiers alone would constitute PII.

With this condition set out in the holding, the decision may not be as far out of step with a slew of prior federal district court decisions holding that a consumer’s personal data, when disclosed, must identify a particular individual, without more, to qualify as PII.  The court found that GPS coordinates are more like a traditional street address than numeric device IDs such that their disclosure “effectively reveal[ed] the name of the video viewer.”

The holding does, however, significantly expand most other courts’ limited interpretation of “consumers” entitled to the protection of the Act.  Those decisions (including one that relied on the now-reversed district court decision in Yershov) have generally held there must be some ongoing commitment by the consumer, even if the commitment was not monetary, beyond merely downloading an app or using a service. The First Circuit acknowledged that there were issues of fact not considered on a motion to dismiss such that its conclusions (as an appellate court) on Yershov’s status as a “subscriber” and Gannett’s violations of the VPPA could both be changed by the district court after remand and discovery.  Nonetheless, the Yershov decision will no doubt give plaintiffs incentive to file new cases now.

Adding fuel to Plaintiffs’ fire, the Yershov decision may be bolstered by a recent Federal Trade Commission (FTC) blog entry posted by Director Jessica Rich, in which she stated that the FTC “regard[s] data as ‘personally identifiable,’ and thus warranting privacy protections, when it can be reasonably linked to a particular person, computer, or device” (emphasis in original). Director Rich went on to state that “in many cases, persistent identifiers such as device identifiers, MAC addresses, static IP addresses, or cookies meet this test.”  The contours of how easy or difficult it should be to “link” an identifier in order to qualify as PII will likely be a hotly contested issue in pending and future VPPA cases.

Moreover, as information proliferates and the definitions of PII and “personal information” evolve, legacy statutes designed in an era where it was difficult to correlate data points to identify actual people become problematic, especially when statutory damages are involved.  To address this problem, Michigan recently amended its state version of the VPPA to both (1) eliminate the $5,000 per person statutory damage provision and require actual damages as a result of an alleged violation; and (2) permit the disclosure of PII in the ordinary course of business, including when marketing goods and services to customers or potential customers, when written notice is provided.

While the Michigan amendments are an important development for a number of publishers that have been targeted in state class actions, they provide no relief under the federal VPPA, nor are we likely to see similar amendments at the federal level in the near future.  Therefore, as this body of case law develops, it is important for companies who disclose consumer viewing data coupled with other identifiers to consider approaches that reduce the plausible “linkage” between such identifiers and a person’s actual identity.

Court Expands Definitions of “PII” and “Consumer” under the VPPA

The VPPA prohibits the “knowing” disclosure of the “personally identifiable information” of a “consumer of such provider” except in narrow and clearly defined circumstances.  The two central issues considered by the court in Yershov were whether the information shared constituted PII, and whether the plaintiff was a “consumer” for purposes of the statute.  Yershov alleged that Gannett violated the VPPA by sharing with Adobe data related to the videos he viewed through its free USA Today Mobile App which consisted of: (1) the title of the video viewed; (2) the GPS coordinates of the device at the time the video was viewed; and (3) unique device identifiers.

The court, taking the pleaded allegations as true, found that Adobe was able to combine the information provided by Gannett with a larger profile of information about the plaintiff gathered from other sources, in order to personally identify him and the videos he was watching (thus triggering the potential VPPA violation).  According to the court:

“[W]hen a football referee announces a violation by ‘No. 12 on the offense,’ everyone with a game program knows the name of the player who was flagged. … [A]ccording to the complaint, when Gannett makes such a disclosure to Adobe, it knows that Adobe has the ‘game program,’ so to speak, allowing it to link the GPS address and device identifier information to a certain person by name, address, phone number, and more.” 


The court did recognize that “there is certainly a point at which the linkage of information to identity becomes too uncertain, or too dependent on too much yet-to-be-done, or unforeseeable detective work,” but concluded that in this case “the linkage, as plausibly alleged, is both firm and readily foreseeable to Gannett.”  Because the First Circuit on review of a motion to dismiss had to accept the allegations as true, it remanded for further proceedings.  The evidence on remand will ultimately prove or disprove what Gannett actually knew or what was reasonably foreseeable, and thus whether the linkage was enough to constitute a violation of the VPPA.

The First Circuit also considered whether Yershov qualified as a “consumer” entitled to the VPPA’s protections.  The VPPA defines a consumer as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.”  The court easily ruled out Yershov as a renter or purchaser, but held that Yershov was a Gannett “subscriber.”

In a decision that was relied on by the Eleventh Circuit in Ellis v. Cartoon Network, Inc., the district court had found that Yershov was not a “subscriber” because he did not have to pay, register, or make any commitments to use the App. In reversing the district court, the First Circuit found instead that the plaintiff was a subscriber because “[t]o use the App, Yershov did indeed have to provide Gannett with personal information, such as his Android ID and his mobile device’s GPS location at the time he viewed a video, each linked to his viewing selections.  While he paid no money, access was not free of a commitment to provide consideration in the form of that information, which was of value to Gannett.”

Beyond the VPPA: FTC Clarifies PII and Michigan “Clarifies” Video Rental Privacy Act

On April 21, shortly before the First Circuit’s ruling in Yershov, there were two other related developments.  First, , Jessica Rich, the FTC’s Director of Bureau of Consumer Protection published a statement on the FTC’s business blog in which she underscored the FTC’s concerns regarding cross-device tracking and recognized the importance of proper disclosure to consumers about such practices.  Director Rich stated that the FTC “regard[s] data as ‘personally identifiable,’ and thus warranting privacy protections, when it can be reasonably linked to a particular person, computer, or device” and that “in many cases, persistent identifiers such as device identifiers, MAC addresses, static IP addresses, or cookies meet this test.”  The FTC’s 2012 privacy report already categorized precise location data as “sensitive information” that should be subject to a consumer’s opt-in consent before collection and disclosure.  While there is no recommendation to require opt-in consent for the collection or disclosure of non-sensitive information under the FTC’s privacy framework, companies were advised to provide consumers with opt-out choices before collecting “personal information” such as persistent identifiers for interest-based advertising and certain other uses.   

Then on May 2, Michigan amended its version of the VPPA (the Michigan Video Rental Privacy Act), effective May 3, by: (1) eliminating the $5,000 per person statutory damage provision and requiring individuals to prove actual damages as a result of an alleged violation; and (2) permitting the disclosure of PII in the ordinary course of business, including when marketing goods and services to customers or potential customers, when written notice is provided.  Now, in order to bring suit under state law, plaintiffs would have to demonstrate that the business did not provide adequate notice of the disclosure and that the plaintiff suffered actual harm as a result of such disclosure. The amendment included language stating the “amendatory act is curative and intended to clarify that the prohibitions on disclosing information” under the Michigan law, presumably putting an end to numerous pending class actions.

The Impact of Yershov on Content Providers

The First Circuit’s broad view regarding PII may cause concern for businesses that provide streaming content to their users, as its ruling may expand the scope of PII to include situations where device IDs and GPS codes may be used to reverse engineer an individual’s identity using information collected from other sources. Yershov also does not take into account the numerous federal district court decisions which have held that the information disclosed by an entity subject to the VPPA “must, without more, itself link an actual person to actual video materials” to constitute PII. Moreover, the First Circuit’s “game program” analogy runs contrary to federal district court rulings that there is no PII disclosure where a third party has to essentially create the “game program” itself by reverse engineering a consumer’s identity by combining disclosed data with information collected from other sources. Because GPS data may be as specific as an individual’s street address, that alone is not that necessarily an expansion of PII, but rather an analogous extension of the physical world to the online world, similar to the extension of “video tapes and other audio visual materials” to online streaming.

However, the First Circuit may have placed an additional burden on businesses to analyze the amount of information a third party partner collects on individuals from other sources when considering what information may be disclosed without running afoul of the VPPA.  Here, the court accepted Yershov’s allegations that Adobe holds vast stores of information about a huge swath of the population, would easily be able to cross reference device identifiers and GPS coordinates with this pool of information to personally identify him, and that Gannett reasonably foresaw this.  However, whether or not Gannett’s disclosures were actionable – and even whether Yershov qualifies as a “subscriber” – will be determined on remand: “Does access through the App generate value for Gannett that website access does not? Is Yershov correct about the extent to which Adobe foreseeably can identify him? Answers to these and similar questions may enable a more refined, and possibly different, conclusion on the ultimate question of whether Gannett has violated the VPPA.”

Given the scope of the First Circuit’s ruling, digital content and media providers should expect an increase in the number of VPPA class actions in the future as it is less likely that cases will be decided on motions to dismiss and instead will have to proceed to discovery.

Businesses should take note of the developments and consider whether their policies accurately reflect the current data collection and disclosures, and whether the appropriate level of consent is obtained when collecting and sharing precise data location information. Moreover, third parties should be contractually prohibited from re-identifying information and making any representations that they can do so without appropriate consumer consent.  As Director Rich explained, “[i]f you’re collecting persistent identifiers, be careful about making blanket statements to people assuring them that you don’t collect any personal information or that the data you collect is anonymous. And as you assess the risks to the data you collect, consider all your data, not just the data associated with a person’s name or email address. Certainly, all forms of personal information don’t need the same level of protection, but you’ll want to provide protections that are appropriate to the risks.”


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Davis Wright Tremaine LLP | Attorney Advertising

Written by:

Davis Wright Tremaine LLP

Davis Wright Tremaine LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.