Yershov v. Gannett Satellite Info. Network, Inc.

Decision Date15 May 2015
Docket NumberCivil Action No. 14–13112–FDS.
PartiesAlexander YERSHOV, individually and on behalf of all others similarly situated, Plaintiff, v. GANNETT SATELLITE INFORMATION NETWORK, INC., dba USA Today, Defendant.
CourtU.S. District Court — District of Massachusetts

104 F.Supp.3d 135

Alexander YERSHOV, individually and on behalf of all others similarly situated, Plaintiff,

Civil Action No. 14–13112–FDS.

United States District Court, D. Massachusetts.

Signed May 15, 2015.

104 F.Supp.3d 136

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

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

104 F.Supp.3d 137


SAYLOR, District Judge.

This is a putative class action arising out of the Video Privacy Protection Act (“VPPA”), 18 U.S.C. § 2710. The VPPA, among other things, prohibits the disclosure of “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 on-line 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 readers to view the on-line version of the newspaper. Viewers using the App can access video clips on various news, sports, and entertainment topics. Plaintiff alleges that defendant discloses “personally identifiable information” every time a person uses the USA Today App to watch video clips. Specifically, plaintiff alleges that every time a user of the App watches a video, the unique identification number of the user's smartphone is provided to a third-party data-analytics company. Plaintiff contends that by doing so, Gannett violates the VPPA.

On September 19, 2014, defendant filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1)for lack of subject-matter jurisdiction and Fed.R.Civ.P. 12(b)(6)for failure to state a claim. For the following reasons, defendant's motion will be granted.

I. Background

A. The USA Today App

Gannett Satellite Information Network, Inc., is based in McLean, Virginia. (Compl. ¶ 6). Gannett is a media company that produces news and entertainment programming. (Id.¶ 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. (Id.). Android is a mobile device operating system developed by Google. (Id.¶ 1 n. 1). Smartphones made by a variety of companies, including HTC and Samsung, use the Android operating system. (Id.). Users can install the USA Today App on an Android device by visiting the Google Play Store, the on-line media platform operated by Google. (Id.¶ 10). Once installed, the App allows users to view articles and video clips organized into sections, such as news and sports. (Id.¶ 12). Prior to using it for the first time, the App requests permission from users to “push” notifications on their device. (Id.¶ 10).1The App does not otherwise seek a user's consent to disclose personal information to third parties for any purpose. (Id.¶ 11).

There is no charge to install the App or to view video clips after installation. (SeeCompl. ¶¶ 9–11 (citing USA Today,Google

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Play, (last visited July 2, 2014))). There is no registration requirement (such as a requirement that the user provide a name and e-mail contact). (See id.). After responding to the request for permission to “push” notifications, the user is not required to provide any other information in order to use the App. (See id.).

B. Alleged Transmittal of PII

The complaint alleges that each time users view video clips on the App, it sends a record of the transaction to Adobe Systems, Inc., an unrelated company that, among other things, performs third-party data-analytics. (Id.¶ 13).2Along with the record of the transaction, the App sends a user's GPS coordinates and the Android device's unique identification number (the “Android ID”). (Id.¶ 13). 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 (citing Settings.Secure,Android Developers, 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).

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, 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 “personally identifiable information” to third parties. (Id.¶ 40).

The complaint alleges that “the combination of his device's unique Android ID and the records of videos that [Yershov] viewed ... constitutes ‘personally identifiable information’ ... because it allows Adobe to identify users such as Yershov, and to attribute their video-viewing records to their Adobe-created profiles.” (Id.¶ 57).

C. Procedural Background

Plaintiff filed the complaint in this action on July 24, 2014, alleging a violation of the Video Privacy Protection Act, 18 U.S.C. § 2710. (Compl.). 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.” (Id.¶ 43). The complaint alleges that all such class members “have had their statutorily

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defined right to privacy violated.” (Id.¶ 62).

Defendant has moved to dismiss for failure to state a claim upon which relief can be granted.

II. Legal Standard

On a motion to dismiss, the Court “must assume the truth of all well-plead[ed] facts and give ... plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp.,496 F.3d 1, 5 (1st Cir.2007)(citing Rogan v. Menino,175 F.3d 75, 77 (1st Cir.1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly,550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” 555, 127 S.Ct. 1955(citations omitted). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal,556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(quoting Twombly,550 U.S. at 556, 127 S.Ct. 1955). Dismissal is appropriate if the facts as alleged do not “possess enough heft to show that plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer Pharm., LLC,521 F.3d 76, 84 (1st Cir.2008)(alterations omitted) (internal quotation marks omitted).

III. Analysis

The Video Privacy Protection Act (“VPPA”), 18 U.S.C. § 2710, was enacted in 1988. Congress passed the VPPA after a “newspaper in Washington published a profile of [Supreme Court nominee and D.C. Circuit] Judge Robert H. Bork based on the titles of 146 films his family had rented from a video store.” S. Rep. 100–599, 2d Sess. at 5 (1988), reprinted in1988 U.S.C.C.A.N. 4342.

Among other things, the VPPA prohibits “video tape service providers” from “knowingly disclos[ing], to any person, personally identifiable information concerning any consumer of such provider” without the consumer's informed, written consent. 18 U.S.C. § 2710(b). The statute...

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