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Video privacy suit over USA Today mobile app reinstated

Posted On: May. 3, 2016 12:00 AM CST

A federal appeals court has reinstated putative class action litigation filed by a plaintiff who charged that a Gannett Inc. unit allegedly violated the Video Privacy Protection Act of 1988 by passing on personal information to a marketing firm.

Gannett Satellite Information Network Inc. a unit of McLean, Virginia-based Gannett Inc., which publishes USA Today, also offers a proprietary software application “USA Today Mobile App” that allows users to access the newspaper's content, including video, on mobile devices, according to last week's ruling by the 1st U.S. District Court of Appeals in Boston in Alexander Yershov v. Gannett Satellite Information Network, Inc., d/b/a/ USA Today.

Each time the user views a video on the app, Gannet sends to San Jose, California-based Adobe Systems Inc., a software company that provides data analytics and online marketing services to its clients, the title of the video viewed, the GPS coordinates of the device at the time it was viewed and certain identifiers associated with the user's device, according to the ruling.

Adobe takes this and other information it culls from a variety of sources to create profiles that may include the user's name and address, age and income, “household structure” and online navigation and transaction history.

Mr. Yershov downloaded and installed the app on his Android mobile device in late 2013. “At no time did he consent, agree or otherwise permit Gannett to disclose any information about him to third parties, nor did Gannett provide him with the opportunity to prevent such disclosures,” according to the ruling.

“Nevertheless, each time Yershov watched a video clip on the app, Gannett disclosed to Adobe the title of the viewed video, Yershov's unique Android ID and the GPS coordinates of Yershov's device at the time the video was viewed,” said the April 29 ruling.

Mr. Yershov sued Gannett in U.S. District Court in Boston, charging violation of the Video Privacy Protection Act of 1988. The lower court found that while the information Gannett disclosed concerning Mr. Yershov was “personally identifiable information” under the act, he was not a “renter, purchaser or subscriber” to Gannett's video content and was therefore not protected under the act.

A three-judge panel of the appeals court, which included retired associate U.S. Supreme Court Justice David H. Souter, unanimously overturned the ruling, and held Mr. Yershov could be considered a subscriber under the act.

Mr. Yershov “plausibly pleads a case that the (act's) prohibition on disclosure applies,” said the ruling. The facts Mr. Yershov alleges “together with reasonable inferences drawn from those facts, plausibly describe a relationship between Yershov and Gannett, combined with a disclosure by Gannett, that ran afoul,” of the act, said the appeals court, in reversing the lower court ruling and remanding it for further proceedings.

In 2015, Google Inc. and Viacom Inc. won the dismissal of a nationwide privacy lawsuit filed under the Video Privacy Protection Act that accused them of illegally tracking the Internet activity of boys and girls who visited the website of cable TV channel Nickelodeon to send them targeted advertising.