May 112016
 May 11, 2016  Posted by  Court, Laws, U.S.

Christin McMeley and John D. Seiver of Davis Wright Tremaine write:

On April 29, 2016, the U.S. Court of Appeals for the First Circuit handed down its widely anticipated opinion in Yershov v. Gannett Satellite Information Network, Inc., in which it expanded the reach of the Video Privacy Protection Act(“VPPA” or “Act”) by endorsing a considerably expanded view of how the statute applies in the digital media context.  In its decision, the court held that (1) “personally identifiable information” (“PII”) includes the GPS coordinates of a device; and (2) a user of a mobile application – even one who does not pay or otherwise register to use the app – qualifies as a “consumer” entitled to the protections of the Act.  Although the information Gannett transferred to a third party also included unique device identifiers (i.e., an Android ID), the court noted that its holding “need not be quite as broad as [its] reasoning suggests,” leaving unanswered the question of whether device identifiers alone would constitute PII.

With this condition set out in the holding, the decision may not be as far out of step with a slew of prior federal district court decisions holding that a consumer’s personal data, when disclosed, must identify a particular individual, without more, to qualify as PII.  The court found that GPS coordinates are more like a traditional street address than numeric device IDs such that their disclosure “effectively reveal[ed] the name of the video viewer.”

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