Paid Television versus Free Streaming: What it means for your privacy.

October 20, 2015

Would you be uncomfortable if the information about what movie you decide to watch on a Friday night in the confines of your home becomes available to the public? Well, Judge Robert K. Bork was back in 1988 when his video rental history was released during his Supreme Court nomination. This incident eventually led to the Video Privacy Protection Act (VPPA), 18 U.S.C. §2710, and it was designed to preserve personal privacy with respect to rental, purchase, or delivery of video tapes, or similar audio visual materials. However, it was recently decided in the case Ellis v. Cartoon Network, that the content that you watch through a mobile application (“app”) is not necessarily protected by the VPPA.
Ellis v. Cartoon Network involves a free app created by Cartoon Network for smartphones that would allow people to watch clips of episodes that they broadcast, such as “Tom and Jerry” and “Pokémon.” The app did not request users to provide any information to Cartoon Network but also did not ask users for consent to share or otherwise disclose personally identifiable information to third parties. Cartoon Network was able to keep track of an Android smartphone user’s viewing history by maintaining a record of every video clip or episode viewed through a user’s Android ID number. Cartoon Network then sent this information to Bango, a third-party data analytics company. Bango, in turn, is able to link an Android ID to a particular person by compiling information about that individual from other websites, applications, and sources and thus compile information to identify and track specific users across multiple electronic devices, applications, and services.
The plaintiff, Ellis, clearly found this process to be very sketchy and decided, having used Cartoon Network’s app, to sue Cartoon Network for disclosing personally identifiable information in the form of the Andriod ID so that Bango easily could derive his identity and thus knew both his identity and the videos he viewed. Ellis argued that he was a “subscriber” of Cartoon Network and thus he is a “consumer” under the VPPA.
However, the Eleventh Circuit affirmed on October 9, 2015, that Cartoon Network did not violate the VPPA by disclosing information about users of its mobile app without their consent, holding that someone who uses a free app can’t be considered a “subscriber.” According to the court:
“[S]ubscription 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.’).”
Thus, the court reasoned that,

“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.”

 
Streaming from a free app is analogous to marking a website as a favorite in an Internet browser, in that it basically just provides easier access to content. Considering the other factors, the court found that 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 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.”

There are have several other cases similar to this one, most of which have failed (one settled). There is an argument to be made that downloading an app creates a relationship that is different from merely surfing a website, for example because it may allow (at the user’s election) notifications and updates.
It is clear through this case that streaming videos on Cartoon Network has been distinguished from streaming videos on Hulu where people create an account and pay to watch shows. However, do consumers truly feel like they are entering a greater relationship with a site like Hulu than with Cartoon Network? People are unlikely to realize that they have significantly more privacy protection by watching videos on Hulu rather than on Cartoon Network even though that is how the law currently plays out.
It appears that the VPPA is a highly specific solution to a narrow problem. The VPPA was tailored specially to tape rental or sale records, not free apps.