In Yershov v. Gannett Satellite Information Network, Inc. d/b/a USA Today, No. 14-13112 (D.Mass. May 15, 2015), the District Court for the District of Massachusetts recently granted a motion to dismiss a putative class action filed against USA Today for alleged violations of the Video Privacy Protection Act, 18 U.S.C. § 2710 (“VPPA”). 

The VPPA prohibits “video tape service providers” from knowingly disclosing “personally identifiable information” (“PII”) regarding “consumers.”  The plaintiff alleged that USA Today’s mobile application transmitted PII, specifically the ID of the mobile device and geographical location, every time a person used the USA Today mobile app to watch video clips, and that this information was provided to a third-party data analytics company. 

USA Today moved to dismiss, arguing that a mobile device ID does not constitute PII under the VPPA.  In this respect, the district court departed from many courts, including decisions we have previously reported on, and held that a mobile device ID does constitute PII in that it is the modern technological equivalent of a physical “address” (which the court noted also constitutes PII). 

USA Today also argued, and the district court agreed, that the plaintiff was not a “consumer” under the VPPA, which is defined as a “renter, purchaser, or subscriber of goods or services….”  The plaintiff argued that he was a subscriber because downloaded, installed, and watched videos on the USA Today application.  USA Today argued that the plaintiff was not a “subscriber” (nor a renter or purchaser) because he watched the video for free and did not make any payment at any time for the service.  The district court again departed from prior courts that have held that any user of a mobile application constitutes a subscriber.  Instead, the court held that to be a “subscriber” required the individual to make some periodic payment for the service provided. 

Accordingly, as the plaintiff was not a “subscriber” under the VPPA, the district court granted USA Today’s motion to dismiss.