Yershov v. Gannet Satellite Info. Network, Inc.

Decision Date02 September 2016
Docket NumberCivil Action No. 14-13112-FDS
Citation204 F.Supp.3d 353
Parties Alexander YERSHOV, individually and on behalf of all others similarly situated, Plaintiff, v. GANNET SATELLITE INFORMATION NETWORK, INC., dba USA Today, Defendant.
CourtU.S. District Court — District of Massachusetts

J. Aaron Lawson, Benjamin H. Richman, J. Dominick Larry, Edelson PC, Chicago, IL, Erica C. Mirabella, Boston, MA, for Plaintiff.

Heather B. Repicky, Nutter, McClennen & Fish, LLP, Boston, MA, Jacob A. Sommer, Zwillinger Genetski LLP, Jeffrey G. Landis, Marc J. Zwillinger, Zwillgen PLLC, Washington, DC, for Defendant.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS

Saylor, District Judge

This is a putative class action arising under the Video Privacy Protection Act ("VPPA"), 18 U.S.C. § 2710. The VPPA, among other things, prohibits "video tape service providers" from knowingly disclosing, to any person, the "personally identifiable information" of certain consumers of video services.

Plaintiff Alexander Yershov has filed suit against defendant Gannett Satellite Information Network, Inc. Gannett publishes a print and online newspaper called USA Today. Gannett has also created a mobile app, called the "USA Today App," that is designed to run on smartphones and other mobile devices, and that permits App users to view the online version of the newspaper. The App also allows users access to short videos on various news, sports, and entertainment topics. The complaint alleges that Gannett discloses a user's "personally identifiable information" ("PII") every time he uses the App to watch video clips. Specifically, the complaint alleges that every time Yershov watches a video through the App, Gannett provides, among other things, the unique identification number of his smartphone to Adobe Systems, Inc., a third-party data-analytics company. It alleges that by doing so, Gannett violates Yershov's "statutorily defined rights to privacy" under the VPPA. (Compl. ¶ 62).

Gannett has moved to dismiss the complaint for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). It contends that the complaint alleges a "bare procedural violation" of the VPPA, which is insufficient to establish Article III standing to bring suit. See Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S.Ct. 1540, 1549, 194 L.Ed.2d 635 (2016). In essence, Gannett contends that the complaint does not allege a concrete injury in fact.

Accepting the complaint's allegations as true and drawing all reasonable inferences on behalf of Yershov, it appears that he has suffered a concrete, albeit "intangible," injury in fact that is sufficient to establish standing. See id. Accordingly, and for the reasons set forth below, Gannett's motion to dismiss will be denied.

I. Background
A. Factual Background

The following facts relevant to standing are stated as alleged in the complaint. The factual background is more completely set forth in the previous orders of the First Circuit and this Court. See Yershov v. Gannett Satellite Info. Network, Inc. , 104 F.Supp.3d 135, 137–38 (D.Mass.2015), rev 'd 820 F.3d 482, 484–85 (1st Cir.2016).

1. The USA Today App

Gannett is a media company that produces news and entertainment content. (Compl. ¶ 1). It distributes that content to consumers through a variety of media, including its flagship newspaper, USA Today. (Id.). In addition to the print edition of USA Today , Gannett offers content through websites and mobile-software applications. (Id. ). One of Gannett's mobile applications is the USA Today App. (Id. ¶ 2).

The USA Today App is a mobile-software application that allows individuals to access news and entertainment media content. (Id. ¶ 9). It is available for installation on Android mobile devices, among others, through the Google Play Store, the online-media platform operated by Google. (Id. ¶¶ 9-10). Before a user can use the App for the first time, it requests the user's permission to "push" (that is, display) notifications to his device. (Id. ¶ 10). The App does not otherwise seek a user's consent to disclose personal information to third parties for any purpose. (Id. ¶ 11). Once installed, the App allows users to view articles and video clips that are organized into sections, such as news and sports. (Id. ¶ 12).

The App is free; there is no charge to install it or to view video clips after installation. (See Compl. ¶¶ 9-11 (citing USA Today , GOOGLE PLAY , https://play.google.com/store/apps/details?id=com.usatoday.android.news&=en (last visited September 1, 2016))). Nor is there a registration requirement (such as a requirement that the user provide a name and e-mail contact). (See id.). After responding to the App's request for permission to "push" notifications, the user is not required to provide any other information in order to use the App. (See id.).

2. Alleged Transmittal of PII from Gannett to Adobe

The complaint alleges that each time users view video clips on the App, Gannett sends a record of the transaction to Adobe, an unrelated company. (Id. ¶ 13). Along with the transaction record, the App sends to Adobe a user's GPS coordinates and the Android device's unique identification number (the "Android ID"). (Id.). The Android ID is a "64-bit number (as a hex string) that is randomly generated when the user first sets up the device and should remain constant for the lifetime of the user's device." (Id. ¶ 13 n.3). Android IDs are unique to specific devices and users.

(Id. ¶ 16). It is not precisely clear what the "record of the transaction" includes, but it appears from the complaint that it includes an identification of the video watched by the user. (See id. ¶¶ 42, 54, 57).

Adobe performs data analytics, which it sells to its own customers. (Id. ¶ 13). According to the complaint, Adobe "collects an enormous amount of detailed information about a given consumer's online behavior (as well as unique identifiers associated with a user's devices) from a variety of sources." (Id. ¶ 20). "Once Adobe links a device's Android ID with its owner, it can then connect new information retrieved from Android apps—including the USA Today App—with existing data in the person's profile (which was previously collected by Adobe from other sources)." (Id. ¶ 22). Therefore, when Adobe receives an individual's Android ID and the record of the video transaction from USA Today App, it is able to connect that information with information collected from other sources "to personally identify users and associate their video viewing selections with a personalized profile in its databases." (Id. ¶ 29).

According to the complaint, plaintiff Alexander Yershov downloaded and began using the USA Today App on his Android device in late 2013. (Id. ¶ 39). He never consented to allowing USA Today to disclose his PII to third parties. (Id. ¶¶ 40, 60). However, it alleges that "each time Yershov viewed a video clip using the [App], USA Today disclosed his PII—in the form of the title of the videos he had watched, his unique Android ID, and his GPS coordinates—to third-party analytics company Adobe." (Id. ¶ 42).1 "Using this information, Adobe was able to identify Yershov and attribute his video records to an individualized profile of [him] in its databases." (Id.).

The complaint alleges that "[a]s a result of defendant's unlawful disclosures, plaintiff and the class have had their statutorily defined rights to privacy violated." (Id. ¶ 62). Yershov "seeks an injunction to prohibit USA Today from releasing his and the class's PII in the future, as well as the maximum statutory and punitive damages available under the VPPA [in] 18 U.S.C § 2710(c)." (Id).

B. Statutory Background

The VPPA, in relevant part, provides as follows: "A video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person for the relief provided in [subsection (c) ]." 18 U.S.C. § 2710(b)(1).2 Subsection (c) of the statute, in relevant part, reads as follows:

(1) Any person aggrieved by any act of a person in violation of this section may bring a civil action in a United States district court.
(2) The court may award—
(A) actual damages but not less than liquidated damages in an amount of $2,500;
(B) punitive damages;(C) reasonable attorneys' fees and other litigation costs reasonably incurred; and
(D) such other preliminary and equitable relief as the court determines to be appropriate.

Id. § 2710(c)(1)(2).3

Congress enacted the VPPA "in response to a profile of then-Supreme Court nominee Judge Robert H. Bork that was published by a Washington D.C., newspaper during his confirmation hearings." Yershov , 820 F.3d at 485 (citing S. Rep. No. 100-599, at 5 (1988), reprinted in 1988 U.S.C.C.A.N. 4342-1). The profile contained a list of all films that Judge Bork and his family had rented from a video store. Id. Members of Congress "denounced the disclosure as repugnant to the right of privacy," id. and passed the VPPA "[t]o preserve personal privacy with respect to the rental, purchase[,] or delivery of video tapes or similar audio visual materials." S. Rep. No. 100-599, at 1.

C. Procedural Background

Yershov filed a single-count complaint on July 24, 2014, alleging a violation of the VPPA, 18 U.S.C. § 2710. The complaint is a putative class action; the class is defined as "[a]ll persons in the United States who used the USA Today App to watch videos and had their PII transmitted to Adobe." (Compl. ¶ 43).

On September 19, 2014, Gannett moved to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), and for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). The Court granted Gannett's motion to dismiss for failure to state a claim. The Court concluded that the information Gannett allegedly disclosed to Adobe was PII under the VPPA. Yershov , 104 F.Supp.3d at 142. However, the Court held that Yershov's download...

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