Mark Ellis v. The Cartoon Network, Inc. , 803 F.3d 1251 ( 2015 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15046
________________________
D.C. Docket No. 1:14-cv-00484-TWT
MARK ELLIS,
individually and on behalf of all others similarly situated,
Plaintiff - Appellant,
versus
THE CARTOON NETWORK, INC.,
a Delaware Corporation,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(October 9, 2015)
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Before JORDAN and DUBINA, Circuit Judges, and GOLDBERG, * Judge.
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. 483, 473 (1928)
*
The Honorable Richard Goldberg, Judge of the United States Court of International
Trade, sitting by designation.
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(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
1
Cartoon Network does not dispute that it is a “video tape service provider” as that term
is defined by the Act, i.e., “any person, engaged in the business, in or affecting interstate or
foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio
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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
video materials, or any person or other entity to whom a disclosure is made under [§
2710(b)(2)(D) or (E)], but only with respect to the information contained in the disclosure.” §
2710(a)(4). We therefore do not address the issue.
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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
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“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
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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
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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, 544 U.S. 550, 570 (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 (2009).
A
Mr. Ellis contends, and the district court concluded, that he is a “consumer”
under the VPPA because he is a “subscriber” of Cartoon Network and its CN app.
For the reasons which follow, we disagree.
The VPPA does not define the term “subscriber,” and we, as a circuit, have
yet to address what the term means. The few district courts that have weighed in on
the issue appear to be divided. Compare, e.g., Yershov v. Gannett Satellite Info.
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Network, Inc., ___ F.Supp. 3d ___, 2015 WL 2340752, at *9–10 (D. Mass. May
15, 2015) (holding that a person who simply downloads a free app on a mobile
device is not a “subscriber”), and Austin-Spearman v. AMC Network Entm’t LLC,
___ F.Supp. 3d ___, 2015 WL 1539052, at *6–8 (S.D.N.Y. Apr. 7, 2015)
(explaining that “casual consumption of web content, without any attempt to
affiliate with or connect to the provider, exhibits none of the critical characteristics
of subscription,” and holding that a person who merely visits a provider’s website
and watches video clips is not a “subscriber”), with, e.g., Locklear v. Dow Jones &
Co., Inc., ___ F.Supp. 3d ___, 2015 WL 1730068, at *3–4 (N.D. Ga. Jan 23, 2015)
(holding that “if a plaintiff, in addition to visiting a website, pleads that he or she
also viewed video content on that website, that plaintiff is a ‘subscriber’ to a
service within the meaning of the VPPA”). Cf. In re Hulu Privacy Litig., 2012 WL
3282960, at *8 (N.D. Cal. Aug. 12, 2012) (“Plaintiffs pleaded more than just
visiting Hulu’s website. They were subscribers of goods and services.”).
We begin our statutory analysis with the ordinary meaning of the term
“subscriber.” See e.g., Arizona v. Inter Tribal Council of Ariz., Inc., 133 S. Ct.
2247, 2254 (2013); United States v. Alabama, 778 F.3d 926, 933 (11th Cir. 2015).
One dictionary defines “subscriber” as a person who is “registered to pay for and
receive a periodical, service, theater tickets, etc. for a specified period of time.”
WEBSTER’S NEW WORLD COLLEGE DICTIONARY 1427 (4th ed. 2000). Another
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similarly defines “subscriber” as a “contributor to a project, fund, etc.; a person
subscribing to a periodical, for share issue, etc.” 2 SHORTER OXFORD ENGLISH
DICTIONARY 3089 (5th ed. 2002). See also BLACK’S LAW DICTIONARY 1655 (10th
ed. 2014) (defining “subscribe” as to “agree to take and pay for something, esp.
something regularly delivered”). Although most definitions of “subscribe” or
“subscriber” involve payment of some sort, not all do. For example, one dictionary
defines “subscriber” as “one that favors, aids, or supports (as by money
contribution, moral influence, [or] personal membership).” WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY 2278 (3d ed. 1981).
We agree with the district court that payment is not a necessary element of
subscription. See Ellis, 2014 WL 5023535, at *2. The term “subscriber” is not
preceded by the word “paid” in § 2710(a)(1) of the VPPA, and there are numerous
periodicals, newsletters, blogs, videos, and other services that a user can sign up
for (i.e., subscribe to) and receive for free. See Hulu, 2012 WL 3282960, at *8.
Payment, therefore, is only one factor a court should consider when determining
whether an individual is a “subscriber” under the VPPA. So the fact that Mr. Ellis
did not pay Cartoon Network to view videos on its CN app does not prevent him
from being a “subscriber” under the Act. But his merely downloading the CN app
for free and watching videos at no cost does not make him a “subscriber” either.
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The dictionary definitions of the term “subscriber” we have quoted above
have a common thread. And that common thread is that “subscription” involves
some type of commitment, relationship, or association (financial or otherwise)
between a person and an entity. As one district court succinctly put it:
“Subscriptions involve some or [most] of the following [factors]: payment,
registration, commitment, delivery, [expressed association,] and/or access to
restricted content.” Yershov, 2015 WL 2340752, at *9. See also Austin-Spearman,
2015 WL 1539052, at *6 (“Whatever the nature of the specific exchange, what
remains is the subscriber’s deliberate and durable affiliation with the provider:
whether or not for payment, these arrangements necessarily require some sort of
ongoing relationship between provider and subscriber, one generally undertaken in
advance and by affirmative action on the part of the subscriber, so as to supply the
provider with sufficient personal information to establish the relationship and
exchange.”).
In Yershov, the plaintiff alleged that he was a “subscriber” under the VPPA
because he had downloaded USA Today’s mobile app on his Android device, and
that app allowed him to watch news and sports video clips. See id. at *1. There was
no charge for the app, and the plaintiff did not register with, or provide any
information to, USA Today through the app. See id. at *2. Concluding that
subscriptions involve either “payment, registration, commitment, delivery, [ ] or
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access to restricted content,” the district court held in Yershov that mere users of
the USA Today app do not fit within that understanding, and therefore “are not
‘subscribers’ within the VPPA’s definition of consumer.” Id. at *9–10.
We find Yershov persuasive, and conclude it is the better reasoned of the
existing opinions on the issue. It is based on the ordinary meaning of the term
“subscriber,” and therefore is better grounded in the statutory text. Congress could
have employed broader terms in defining “consumer” when it enacted the VPPA
(e.g., “user” or “viewer”) or when it later amended the Act (e.g., “a visitor of a web
site or mobile app”), but it did not.
B
In concluding that Mr. Ellis was a “subscriber,” the district court relied on
the analysis in Hulu. See Ellis, 2014 WL 5023535, at *2. That reliance, however,
was misplaced. Hulu did not hold that simply pleading “more than just visiting [a]
website” is sufficient to make a person a “subscriber” under the VPPA. See Hulu,
2012 WL 3282960, at *8. Although the district court in Hulu noted that the
“[p]laintiffs had pleaded more than just visiting Hulu’s website,” id., this
observation was in response to Hulu’s argument that “even if payment is not
required to be a subscriber, being a subscriber requires more than just visiting
Hulu.” Id. at *7. The district court in Hulu denied the motion to dismiss because
the plaintiffs did a lot more than just visit Hulu’s website. They “signed up for a
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Hulu account, became registered users, received a Hulu ID, established Hulu
profiles, and used Hulu’s video streaming services.” Id. In short, the district court’s
language in Hulu simply and correctly refuted Hulu’s claim that the plaintiffs had
done nothing more than visit Hulu’s website. See id. *7–8.
We do not understand Hulu to stand for the broad proposition that persons
do not have to log in or register to be considered subscribers. The district court in
Hulu noted that Hulu’s cookies “allowed [the plaintiffs’] data to be tracked
regardless of whether they were registered and logged in,” id. at *8 (internal
quotation marks and citation omitted), but, as noted earlier, those plaintiffs also
alleged that they had previously created Hulu accounts, registered, and logged in.
The district court’s observation in Hulu that a VPPA violation could occur when
the plaintiffs were not logged on to Hulu’s service is just another way of saying
that the Washington video store could have violated the VPPA, even if Judge Bork
forgot his video store rental card, had it been able to physically identify him as the
person who rented a particular movie and then given that information to a third
party.
Mr. Ellis did not sign up for or establish an account with Cartoon Network,
did not provide any personal information to Cartoon Network, did not make any
payments to Cartoon Network for use of the CN app, did not become a registered
user of Cartoon Network or the CN app, did not receive a Cartoon Network ID, did
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not establish a Cartoon Network profile, did not sign up for any periodic services
or transmissions, and did not make any commitment or establish any relationship
that would allow him to have access to exclusive or restricted content. Mr. Ellis
simply watched video clips on the CN app, which he downloaded onto his Android
smartphone for free. In our view, downloading an app for free and using it to view
content at no cost is not enough to make a user of the app a “subscriber” under the
VPPA, as there is no ongoing commitment or relationship between the user and the
entity which owns and operates the app. Importantly, such a user is free to delete
the app without consequences whenever he likes, and never access its content
again. The downloading of an app, we think, is the equivalent of adding a
particular website to one’s Internet browser as a favorite, allowing quicker access
to the website’s content. Under the circumstances, Mr. Ellis was not a “subscriber”
of Cartoon Network or its CN app. See Yershov, 2015 WL 2340752, at *9.
We recognize that the district court in Austin-Spearman, 2015 WL 1539052,
at *7, believed that the district court here correctly resolved the “subscriber” issue.
Although we generally agree with the approach and result of Austin-Spearman—
the case held that a person who visited the free website of a cable television
network to watch videos was not a “subscriber” of the network under the VPPA –
we do not think that the district court’s resolution here is consistent with the
ordinary meaning of the term “subscriber.” As we have explained, the free
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downloading of a mobile app on an Android device to watch free content, without
more, does not a “subscriber” make.
III
Because Mr. Ellis is not a “subscriber” under the VPPA, we affirm the
district court’s order dismissing his amended complaint.2
AFFIRMED.
2
Given the basis for our ruling, we express no view on the district court’s reading of the
term “personally identifiable information” in the VPPA.
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