Perry v. Cable News Network, Inc.

Decision Date27 April 2017
Docket NumberNo. 16-13031,16-13031
Citation854 F.3d 1336
Parties Ryan PERRY, Plaintiff–Appellant, v. CABLE NEWS NETWORK, INC., Delaware corporation, CNN Interactive Group, Inc., a Delaware corporation, Defendants–Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Ryan D. Andrews, Rafey Balabanian, Courtney C. Booth, Jay Edelson, James Dominick Larry, John Aaron Lawson, Roger Perlstadt, Benjamin H. Richman, Edelson, PC, Chicago, IL, Jennifer Auer Jordan, The Jordan Firm, LLC, Atlanta, GA, for PlaintiffAppellant.

Marc J. Zwillinger, Jonathan S. Frankel, Jeffrey G. Landis, ZwillGen, PLLC, Washington, DC, Alan W. Bakowski, James Andrew Lamberth, Troutman Sanders, LLP, Atlanta, GA, Clinton Earl Cameron, Troutman Sanders, LLP, Chicago, IL, for DefendantAppellee.

Alan Jay Butler, Electronic Privacy Information Center, Washington, DC, for Amicus Curiae.

Before WILSON and BLACK, Circuit Judges, and RESTANI,* Judge.

RESTANI, Judge:

Appellant Ryan Perry ("Perry") appeals the district court's dismissal of his complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court held that Perry failed to state a claim under the Video Privacy Protection Act ("VPPA") both because Perry is not a statutory "consumer" and the information at issue is not "personally identifiable information." The district court also reasoned that Perry's proposed amendments to his complaint would be futile. We affirm.

BACKGROUND

According to Perry's complaint, Appellee Cable News Network, Inc. is a producer of news programming for television. Cable News Network, Inc. along with its subsidiary Appellee CNN Interactive Group, Inc. (collectively, "CNN") offer media content on a mobile software application (or "app"), and Perry alleges that CNN's proprietary app (the "CNN App") is available for download on mobile devices, including on Apple, Inc. ("Apple")'s iPhone. Through the CNN App, users can get breaking news alerts, follow stories, and watch video clips and coverage of live events.

The CNN App may be downloaded through the Apple iTunes Store. The CNN App never seeks the user's consent to disclose the user's personal data to any third parties. Perry, who is a citizen of Illinois, began using the CNN App in early 2013 on his iPhone. He never consented to allow CNN to disclose his personally identifiable information.

Perry alleges that the CNN App, without a user's knowledge, both tracks the user's views of news articles and videos and also collects a record of this viewing activity. When a user closes the CNN App, CNN sends the collected record of viewing activity to a company called Bango, a third party company that conducts data analytics. CNN also sends Bango a media access control address ("MAC address"), which is a unique string of numbers associated with a particular user's specific mobile device.

Bango then uses the MAC address to link an internet user's unique device identifier to the user's other internet activity in order to understand the user's online behavior. Bango constructs a digital file related to the user's online behavior by accessing information available to Bango from an extensive range of networks and devices. Bango is able to compile personal information, including the user's name, location, phone number, email address, and payment information, and it can attribute this information to a single user across different devices and platforms.

On February 18, 2014, Perry filed a proposed class action in the district court. In his first amended complaint, Perry sets forth one cause of action for violation of the VPPA, 18 U.S.C. § 2710. Perry seeks injunctive relief and both statutory and punitive damages due to CNN's allegedly unlawful disclosures of personally identifiable information.

Following this court's opinion in Ellis v. Cartoon Network, Inc. , 803 F.3d 1251 (11th Cir. 2015), in which we affirmed the dismissal of a complaint bringing similar allegations pursuant to the VPPA, Perry sought leave of the district court to amend his complaint. On April 20, 2016, the district court granted CNN's motion to dismiss the amended complaint, reasoning that further amendment to the complaint would be futile. Perry appeals.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291. We review de novo the issue of whether a party has standing. Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A. , 781 F.3d 1245, 1251 (11th Cir. 2015). We also review de novo a district court's decision to deny leave to amend for futility. Cockrell v. Sparks , 510 F.3d 1307, 1310 (11th Cir. 2007) (per curiam).

DISCUSSION
I. Standing

CNN argues Perry has not alleged a legally cognizable injury in the light of the Supreme Court's decision in Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) because Perry's alleged violation of a statutory right is not on its own sufficiently concrete.

Federal jurisdiction is circumscribed by the case or controversy requirement of Article III of the Constitution, essential to which is the doctrine of standing. U.S. Const. art. III, § 2, cl. 1 ; Lujan v. Defenders of Wildlife , 504 U.S. 555, 559–60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To demonstrate standing, a "plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo , 136 S.Ct. at 1547. An injury in fact is both "concrete and particularized" as well as "actual or imminent, not conjectural or hypothetical[.]" Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

In Spokeo , the Supreme Court vacated the decision of the Court of Appeals and remanded the issue of whether a plaintiff sufficiently alleged a concrete injury where the plaintiff claimed a statutory violation of the Fair Credit Reporting Act ("FCRA"). 136 S.Ct. at 1545–46. The plaintiff alleged that a website had published inaccurate information about him. Id. at 1544. The Supreme Court emphasized that in addition to being particularized, intangible injuries, including statutory violations, must still be concrete. Id. at 1548 ("A ‘concrete’ injury must be de facto; that is, it must actually exist."). The Supreme Court stated that "both history and the judgment of Congress play important roles" in determining whether an intangible harm is concrete, explaining that "it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts." Id. at 1549. The Supreme Court held that the plaintiff there had only alleged a "bare procedural violation" of the FRCA because the violation, on its own, may not cause any harm or present a material risk of harm. Id. at 1550.

Perry has established his standing to file this action because his alleged injury is sufficiently concrete. Although Perry does not allege any additional harm beyond the statutory violation, the Supreme Court has made clear that our analysis does not end there. See Spokeo , 136 S.Ct. at 1549. Instead, "the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact" so that "a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified." Id. ; see also Havens Realty Corp. v. Coleman , 455 U.S. 363, 373, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (instructing that injury in fact "may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing....’ " (quoting Warth v. Seldin , 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) )).

The structure and purpose of the VPPA supports the conclusion that it provides actionable rights. Subject to certain exceptions, the VPPA prohibits the wrongful disclosure by a video tape service provider of video tape rental or sale records. 18 U.S.C. § 2710. It creates a cause of action for "[a]ny person aggrieved by any act of a person in violation of this section." 18 U.S.C. § 2710(c)(1). The statute was enacted in response to a newspaper's publication of Supreme Court nominee Judge Robert H. Bork's video rental history from a particular store, and it seeks " ‘to preserve personal privacy with respect to the rental, purchase, or delivery of video tapes or similar audio visual materials....' " Ellis , 803 F.3d at 1252–53 (quoting 134 Cong. Rec. S5396-08, S. 2361 (May 10, 1988)). We conclude that violation of the VPPA constitutes a concrete harm. See In re Nickelodeon , 827 F.3d 262, 274 (3d Cir. 2016) ("While perhaps ‘intangible,’ the harm is also concrete in the sense that it involves a clear de facto injury, i.e. , the unlawful disclosure of legally protected information.").

Indeed, the VPPA's creation of a cause of action for this type of an invasion of privacy "has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts." Spokeo , 136 S.Ct. at 1549. Since the early 1900s, "the existence of a right of privacy [has been] recognized in the great majority of the American jurisdictions that have considered the question." Restatement (Second) of Torts § 652A cmt. a. (Am. Law Inst. 1977); see also U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press , 489 U.S. 749, 763, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) ("[B]oth the common law and the literal understandings of privacy encompass the individual's control of information concerning his or her person."). Further, in the tort of intrusion upon seclusion,1 "[t]he intrusion itself makes the defendant subject to liability, even though there is no publication or other use," meaning a showing of additional harm is not necessary to create liability. Restatement (Second) of Torts § 652B cmt. b (emphasis added). The VPPA is similar but subjects a video...

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