VPPA Harms Concrete, But Plaintiff Not A Subscriber

Violation of statute alone creates standing, but download of app not enough to make a subscriber

Perry v. CNN
Affirmed – CNN allegedly disclosed plaintiff’s viewing habits on the CNN mobile app, along with his personal information (MAC Address), to third-party data analytics company Bango without his consent. The lower court ruled that a MAC Address was not ‘personal’ and plaintiff was not a ‘subscriber’ since he only downloaded a free app and watched free videos.

On appeal, the court found – following its opinion in Ellis v. Cartoon Network – that plaintiff had standing (violation of an individual interest in preventing disclosure sufficient to constitute injury in fact). However, plaintiff failed to allege he was a subscriber. The app was free, as was the content he viewed. Moreover, he did not create an account or ‘register’ with CNN (there was no “ongoing commitment or relationship“).

Since the court established that plaintiff was not a subscriber (sufficient to dismiss VPPA claims), the court need not consider whether a MAC Address was ‘personally identifiable information.’
[11th. Circ; 16-13031 (Orig: N.D. GA; 1:14-cv-02926)]
jbho: So no cover under Spokeo, but at least a clarification on what constitutes a subscriber.

Interesting to note that in the ‘subscriber’ determination, the court found any ‘enhanced’ features in the app were accessible through plaintiff’s cable provider, not necessarily the app itself. Plaintiff’s choice to watch CNN live on the app (after logging in) rather than on his television did not convert him into a CNN ‘subscriber.’ Plaintiff’s cable provider was not named as a defendant.

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