United States District Court, D. Massachusetts
ALEXANDER YERSHOV, individually and on behalf of all others similarly situated, Plaintiff,
GANNET SATELLITE INFORMATION NETWORK, INC., dba USA Today, Defendant.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
Dennis Saylor IV Dated United States District Judge
a putative class action arising under the Video Privacy
Protection Act (“VPPA”), 18 U.S.C. § 2710.
The VPPA, among other things, prohibits “video tape
service providers” from knowingly disclosing, to any
person, the “personally identifiable information”
of certain consumers of video services.
Alexander Yershov has filed suit against defendant Gannett
Satellite Information Network, Inc. Gannett publishes a print
and online 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 App users to view the online
version of the newspaper. The App also allows users access to
short videos on various news, sports, and entertainment
topics. The complaint alleges that Gannett discloses a
user's “personally identifiable information”
(“PII”) every time he uses the App to watch video
clips. Specifically, the complaint alleges that every time
Yershov watches a video through the App, Gannett provides,
among other things, the unique identification number of his
smartphone to Adobe Systems, Inc., a third-party
data-analytics company. It alleges that by doing so, Gannett
violates Yershov's “statutorily defined rights to
privacy” under the VPPA. (Compl. ¶ 62).
has moved to dismiss the complaint for lack of subject-matter
jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). It contends
that the complaint alleges a “bare procedural
violation” of the VPPA, which is insufficient to
establish Article III standing to bring suit. See Spokeo,
Inc. v. Robins, __U.S.__, 136 S.Ct. 1540, 1549 (2016).
In essence, Gannett contends that the complaint does not
allege a concrete injury in fact.
the complaint's allegations as true and drawing all
reasonable inferences on behalf of Yershov, it appears that
he has suffered a concrete, albeit “intangible, ”
injury in fact that is sufficient to establish standing.
See Id. Accordingly, and for the reasons set forth
below, Gannett's motion to dismiss will be denied.
following facts relevant to standing are stated as alleged in
the complaint. The factual background is more completely set
forth in the previous orders of the First Circuit and this
Court. See Yershov v. Gannett Satellite Info. Network,
Inc., 104 F.Supp.3d 135, 137-38 (D. Mass. 2015),
rev'd 820 F.3d 482, 484-85 (1st Cir. 2016).
The USA Today App
is a media company that produces news and entertainment
content. (Compl. ¶ 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).
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, through the Google Play
Store, the online-media platform operated by Google.
(Id. ¶¶ 9-10). Before a user can use the
App for the first time, it requests the user's permission
to “push” (that is, display) notifications to his
device. (Id. ¶ 10). The App does not otherwise
seek a user's consent to disclose personal information to
third parties for any purpose. (Id. ¶ 11). Once
installed, the App allows users to view articles and video
clips that are organized into sections, such as news and
sports. (Id. ¶ 12).
is free; there is no charge to install it or to view video
clips after installation. (See Compl. ¶¶
9-11 (citing USA Today, Google Play,
details?id=com.usatoday.android.news&hl=en (last visited
September 1, 2016))). Nor is there a registration requirement
(such as a requirement that the user provide a name and
e-mail contact). (See id.). After responding to the
App's request for permission to “push”
notifications, the user is not required to provide any other
information in order to use the App. (See id.).
Alleged Transmittal of PII from Gannett to
complaint alleges that each time users view video clips on
the App, Gannett sends a record of the transaction to Adobe,
an unrelated company. (Id. ¶ 13). Along with
the transaction record, the App sends to Adobe a user's
GPS coordinates and the Android device's unique
identification number (the “Android ID”).
(Id.). 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). 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).
performs data analytics, which it sells to its own customers.
(Id. ¶ 13). 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).
to the complaint, plaintiff 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 PII to third parties.
(Id. ¶¶ 40, 60). However, it alleges that
“each time Yershov viewed a video clip using the [App],
USA Today disclosed his PII--in the form of the title of the
videos he had watched, his unique Android ID, and his GPS
coordinates--to third-party analytics company Adobe.”
(Id. ¶ 42). “Using this information, Adobe
was able to identify Yershov and attribute his video records
to an individualized profile of [him] in its
complaint alleges that “[a]s a result of
defendant's unlawful disclosures, plaintiff and the class
have had their statutorily defined rights to privacy
violated.” (Id. ¶ 62). Yershov
“seeks an injunction to prohibit USA Today from
releasing his and the class's PII in the future, as well
as the maximum statutory and punitive damages available under
the VPPA [in] 18 U.S.C § 2710(c)).”
VPPA, in relevant part, provides as follows: “A video
tape service provider who knowingly discloses, to any person,
personally identifiable information concerning any consumer
of such provider shall be liable to the aggrieved person for
the relief provided in [subsection (c)].” 18 U.S.C.
§ 2710(b)(1). Subsection (c) of the statute, in relevant
part, reads as follows:
(1) Any person aggrieved by any act of a person in violation
of this section may bring a civil action in a United States
(2) The court may award-
(A) actual damages but not less than liquidated damages in an
amount of $2, 500;
(B) punitive damages;
(C) reasonable attorneys' fees and other litigation costs
reasonably incurred; and
(D) such other preliminary and equitable relief as the court