Ellis v. Cartoon Network, Inc.

• Decision Date: 09 October 2015
• Docket Number: No. 14–15046.,14–15046.
• Citation: 803 F.3d 1251
• Parties: Mark ELLIS, individually and on behalf of all others similarly situated, Plaintiff–Appellant, v. The CARTOON NETWORK, INC., a Delaware Corporation, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

803 F.3d 1251

Mark ELLIS, individually and on behalf of all others similarly situated, Plaintiff–Appellant

v.The CARTOON NETWORK, INC., a Delaware Corporation, Defendant–Appellee.

No. 14–15046.

United States Court of Appeals, Eleventh Circuit.

Oct. 9, 2015.

Ryan D. Andrews, Rafey Balabanian, James Dominick Larry, Roger Perlstadt, Benjamin H. Richman, Edelson, P.C., Chicago, IL, Jennifer Auer Jordan, The Jordan Firm, LLC, Atlanta, GA, for Plaintiff-Appellant.

Alan W. Bakowski, James Andrew Lamberth, Troutman Sanders, LLP, Atlanta, GA, Marc J. Zwillinger, Jonathan S. Frankel, Jeffrey G. Landis, Jacob A. Sommer, Zwillgen, PLLC, Washington, DC, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before JORDAN and DUBINA, Circuit Judges, and GOLDBERG,^* Judge.

Opinion

JORDAN, Circuit Judge:

This appeal from the dismissal of a complaint presents two issues of first impression concerning the Video Privacy Protection Act, 18 U.S.C. § 2710. First, who is a “subscriber” (and therefore a “consumer”) under the Act? Second, what exactly is the “personally identifiable information” protected by the Act? We conclude that a person who downloads and uses a free mobile application on his smartphone to view freely available content, without more, is not a “subscriber” (and therefore not a “consumer”) under the VPPA. Given our ruling, we leave for another day the contours of the term “personally identifiable information.”

I

Congress enacted the VPPA in 1988 after a newspaper “published a profile of [Supreme Court nominee and then D.C. Circuit] Judge Robert H. Bork” which contained the titles of 146 films he and his family had rented from a local video store. See S. Rep. 100–599, 2d Sess., at 5 (1988), reprinted in 1988 U.S.C.C.A.N. 4342. See also Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 621 (7th Cir.2014) (recounting the history of the VPPA). Recognizing, as Justice Brandeis had decades earlier, that “subtler and more far reaching means of invading privacy have become available,” Olmstead v. United States, 277 U.S. 438, 473, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting), the Act sought “to preserve personal privacy with respect to the rental, purchase, or delivery of video tapes or similar audio visual materials....” 134 Cong. Rec. S5396–08, S. 2361 (May 10, 1988). Senator Patrick Leahy explained that the new law was meant to protect “our right to privacy [in] the choice of movies that we watch with our family in our own homes,” as “[t]hese activities are at the core of any definition of personhood.” Id. at S5397–01.

Subject to some exceptions that do not apply here, see Sterk, 770 F.3d at 621, the VPPA generally prohibits “video tape service providers” from knowingly disclosing, to a third-party, “personally identifiable information concerning any consumer.” 18 U.S.C. § 2710(b). The Act provides a federal cause of action for aggrieved “consumers,” allowing them to recover actual or liquidated damages of at least $2,500, punitive damages, attorneys' fees and costs, and other appropriate preliminary and equitable relief. See 18 U.S.C. § 2710(c). Under the VPPA, “the term ‘consumer’ means any renter, purchaser, or subscriber of goods or services from a video tape service provider.” § 2710(a)(1). “[T]he term ‘personally identifiable information’ includes information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.” § 2710(a)(3).¹

Congress amended the VPPA in 2012 “to reflect the realities of the 21st century.”158 Cong. Rec. H6849–01 (Dec. 18, 2012). Essentially, the changes allowed consumers greater flexibility to share their video viewing preferences, while maintaining their privacy, by clarifying that video tape service providers may obtain informed, written consent of consumers on an ongoing basis via the Internet. The 2012 changes did not alter the VPPA's definitions of “consumer” or “personally identifiable information.” See id. (“This legislation does not change the scope of who is covered by the VPPA or the definition of ‘personally identifiable information.’ ”).

II

We begin by recounting the pertinent allegations of the complaint and summarizing the district court's order.

A

Cartoon Network provides a free mobile application (“app” for short) for smartphones called the CN app. Persons can download the app to watch clips or episodes of TV shows on Cartoon Network, including “Tom and Jerry,” “Looney Toons,” “Pokémon,” and “Transformers.” CN app users can also log in with their television provider information to view additional content. If, however, a user simply wants to view the freely available content on the CN app, he does not have to create a login account. The user can simply view the content on the app's home screen without having to provide any information to Cartoon Network. The CN app does not ask users for their consent to share or otherwise disclose personally identifiable information to third parties.

Cartoon Network identifies and tracks an Android smartphone user on the CN app through his mobile device identification or Android ID, which is “a 64–bit number (hex string) that is randomly generated when a user initially sets up his device and should remain constant for the lifetime of the user's device.” Cartoon Network keeps track of an Android user's viewing history by maintaining a record of “every video clip or [episode] viewed by the user” via the Android ID number. Cartoon Network then sends this information to a third-party data analytics company called Bango. Each time a user closes out of the CN app on his Android device, “[a] complete record”—including the user's “Android ID and a list of the videos he viewed”—is sent to Bango.

Bango specializes “in tracking individual behaviors across the Internet and mobile applications ... [and claims] that its technology ‘reveals customer behavior, engagement and loyalty across and between all [ ] websites and apps.’ ” Bango uses Android IDs “to identify and track specific users across multiple electronic devices, applications, and services.” Because Bango is apparently “smarter than the average bear,” see The Yogi Bear Show, Trying to Escape Jellystone Park (Hanna–Barbera Prod.1961), it can “automatically” link an Android ID to a particular person by compiling information about that individual from other websites, applications, and sources. So when Cartoon Network sends Bango the Android ID of a CN app user along with his video viewing history, Bango associates that video history with a particular individual.

B

In 2013 Mark Ellis downloaded Cartoon Network's free CN app on his Android smartphone to watch video clips. Without his consent, Cartoon Network kept records of the videos he watched and shared those records with Bango each time Mr. Ellis closed out of the CN app. Cartoon Network did not provide Bango with Mr. Ellis' name, address, or social security number, but rather the combination of Mr. Ellis' Android ID and video viewing records. Because Bango is able to identify Mr. Ellis from his Android ID, it knows which videos he watched.

Mr. Ellis sued Cartoon Network under the VPPA. He alleged that he was a “subscriber” of Cartoon Network and therefore a “consumer” under the Act, and claimed that Cartoon Network violated the Act when it disclosed his “personally identifiable information”—his Android ID and his video viewing records—to Bango. Cartoon Network moved to dismiss Mr. Ellis' amended complaint on a number of grounds, and the district court granted that motion. See Ellis v. Cartoon Network, Inc., 2014 WL 5023535 (N.D.Ga. Oct. 8, 2014).

The district court concluded that Mr. Ellis was a “subscriber,” and therefore a “consumer,” under the VPPA, and that he had pled a cognizable injury. The district court reasoned that Mr. Ellis alleged “more than simply visiting [Cartoon Network's] website.” Id. at *2. To be a “subscriber,” the district court explained, a person did not have to be a paying customer or log in or register. Id. Because Mr. Ellis had downloaded the CN app on his smartphone, he was a “subscriber” and ergo a “consumer.” Id.

The district court ruled, however, that Mr. Ellis' Android ID and video viewing records were not “personally identifiable information” under the VPPA because they did not, “in [their] own right, without more, link an actual person to actual video materials.” Id. at *3. Reasoning that the emphasis of “personally identifiable information” in the Act was “on disclosure, not comprehension by the receiving person,” the district court held that there was no violation of the VPPA because Bango had to take additional steps to match the Android ID to Mr. Ellis. Id. Although the district court acknowledged that an Android ID is “unique to each user and device,” it was not akin to a name. Id.

III

We review the district court's dismissal of Mr. Ellis' amended complaint under Rule 12(b)(6)de novo, accepting all factual allegations in the complaint as true and construing them in the light most favorable to Mr. Ellis. See, e.g., Timson v. Sampson, 518 F.3d 870, 872 (11th Cir.2008). The district court's interpretation of the VPPA is also subject to plenary review. See, e.g., United States v. Pistone, 177 F.3d 957, 958 (11th Cir.1999) ; Centel Cable Television Co. Fla. v. Thomas J. White Dev. Corp., 902 F.2d 905, 908 (11th Cir.1990).

To survive a Rule 12(b)(6) motion, a complaint must contain sufficient factual allegations to make a claim “plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A “claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A

Mr. Ellis contends, and the district court concluded, that he is a “consumer” under the VPPA...