## Facts

- Cartoon Network offered a free mobile application that allowed users to watch video clips and episodes on smartphones.
- Users could watch some content without logging in or creating an account; users with cable subscriptions could log in through a TV provider for additional access.
- Mark Ellis downloaded and used the app on an Android smartphone to watch video clips.
- Android devices have a unique, persistent “Android ID” assigned by Google.
- Each time a user finished viewing content and closed the app, Cartoon Network transmitted the user’s viewing history together with the Android ID to a third-party analytics company, Bango.
- The app did not request or obtain Ellis’s consent for these disclosures.
- Ellis alleged Bango could link Android IDs to specific individuals by combining the ID with other data, enabling identification of a person’s viewing history.
- Ellis filed a putative class action alleging violations of the Video Privacy Protection Act (VPPA), which limits disclosure of “personally identifiable information” concerning a “consumer” of a “video tape service provider.”

## Issues

1. Whether a person who downloads and uses a free mobile app to watch freely available video content, without registration, payment, or an ongoing relationship, is a “subscriber” (and thus a “consumer”) under the VPPA.
2. Whether transmitting an Android ID together with viewing history to a third-party analytics company constitutes disclosure of “personally identifiable information” under the VPPA.

## Decision

- The Eleventh Circuit affirmed dismissal of the VPPA claim.
- The court held that Ellis was not a “subscriber” and therefore not a VPPA “consumer” based solely on downloading and using a free app to view free content without more.
- Because Ellis was not a “consumer,” the court did not reach whether the Android ID plus viewing history constituted “personally identifiable information.”

## Legal Principles

- VPPA liability for disclosure requires that the disclosed information concern a “consumer,” defined as a “renter, purchaser, or subscriber” of goods or services from a covered video service provider.
- Where a statute does not define “subscriber,” courts may apply ordinary meaning informed by statutory context.
- “Subscriber” implies some ongoing commitment, relationship, or association (financial or otherwise) with the provider, shown by indicia such as registration, account creation, payment, or provision of personal information in exchange for continuing access.
- Merely downloading a free app and watching freely available content without registration, login credentials, payment, or other ongoing exchange does not create subscriber status under the VPPA.
- A court may resolve a VPPA claim on consumer status grounds without deciding the scope of “personally identifiable information.”

## Conclusion

The Eleventh Circuit concluded that use of a free, no-registration mobile app to view free video content does not make a user a VPPA “subscriber,” and thus the VPPA’s disclosure prohibition did not apply to Ellis; the court left unresolved whether an Android ID paired with viewing history is “personally identifiable information.”


Ellis v. Cartoon Network, Inc., 803 F.3d 1251 (11th Cir. 2015)