Yershov v. Gannett Satellite Information Network, Inc.

United States Court of Appeals
For the First Circuit

No. 15-1719

ALEXANDER YERSHOV,

Plaintiff, Appellant,

v.

GANNETT SATELLITE INFORMATION NETWORK, INC., d/b/a USA TODAY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Thompson, Circuit Judge,
Souter, Associate Justice,*
and Kayatta, Circuit Judge.

Ryan D. Andrews, with whom Roger Perlstadt and Edelson PC
were on brief, for appellant.
Marc J. Zwillinger, with whom Jeffrey G. Landis, Jacob A.
Sommer, ZwillGen PLLC, Heather B. Repicky, and Nutter McClennen &
Fish LLP were on brief, for appellee.

April 29, 2016

* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 KAYATTA, Circuit Judge. Plaintiff Alexander Yershov

brings this putative class-action lawsuit against Defendant

Gannett Satellite Information Network, Inc. ("Gannett") for

allegedly disclosing information about Yershov to a third party in

violation of the Video Privacy Protection Act of 1988, Pub. L. No.

100-618, § 2, 102 Stat. 3195 (codified as amended at 18 U.S.C.

§ 2710) ("VPPA" or the "Act"). In ruling on a motion to dismiss

the complaint under Federal Rule of Civil Procedure 12(b)(6), the

district court found that the information Gannett disclosed

concerning Yershov was "personally identifiable information"

("PII") under the VPPA, 18 U.S.C. § 2710(a)(3), but that Yershov

was not a "renter, purchaser, or subscriber" of or to Gannett's

video content and, therefore, not a "consumer" protected by the

Act, id. § 2710(a)(1), (b)(1). We agree with the district court

that the information disseminated by Gannett concerning Yershov

was PII, but we also find that the complaint adequately alleges

that Yershov was a "consumer" under the VPPA. We therefore reverse

the dismissal of the complaint and remand this case for further

proceedings.

I.

We begin with the facts alleged in the complaint, simply

assuming them to be true. Davis v. Coakley, 802 F.3d 128, 130

(1st Cir. 2015). Gannett is an international media company that

produces news and entertainment programming, including the

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newspaper USA Today. In addition to offering USA Today in printed

form, Gannett digitally offers this content through a proprietary

mobile software application called the "USA Today Mobile App" (the

"App"). The App allows users to access news and entertainment

media content, including videos, on their mobile devices.

To install the App on an Android device, users must visit

the Google Play Store--an online digital media platform run by

Google--and then download the App to their device. When opened

for the first time, the App presents a screen that seeks the user's

permission for it to "push" or display notifications on the device.

After choosing "Yes" or "No," the user is directed to the App's

main user interface. During this process, the App does not seek

or obtain the user's consent to disclose anything about the user

to third parties. Nevertheless, each time the user views a video

clip on the App, Gannett sends to Adobe Systems Incorporated

("Adobe") (1) the title of the video viewed, (2) the GPS

coordinates of the device at the time the video was viewed, and

(3) certain identifiers associated with the user's device, such as

its unique Android ID.1

1 According to Yershov, "[t]he 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.'" Android IDs, Yershov alleges, are unique
both to a specific device and user, such that where a device has
multiple users, each user appears as a separate device.

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 Adobe is an unrelated third party that offers data

analytics and online marketing services to its clients by

collecting information about consumers and their online behavior.

A unique identifier such as an Android ID allows Adobe "to identify

and track specific users across multiple electronic devices,

applications, and services" that a consumer may use. Adobe takes

this and other information culled from a variety of sources to

create user profiles comprised of a given user's personal

information, online behavioral data, and device identifiers. The

information contained in these profiles may include, for example,

the user's name and address, age and income, "household structure,"

and online navigation and transaction history. These digital

dossiers provide Adobe and its clients with "an intimate look at

the different types of materials consumed by the individual" that

"may reveal, or help create inferences about," a user's traits and

preferences. They also allow Adobe's clients, such as Gannett,

"to, among other things, accurately target advertisements to its

users."

In late 2013, Yershov downloaded and installed the App

on his Android mobile device. Yershov does not allege that he

opted to receive push notifications, so we will assume that he did

not. Yershov then used the App to read news articles and watch

numerous video clips. At no time did he consent, agree, or

otherwise permit Gannett to disclose any information about him to

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third parties, nor did Gannett provide him with the opportunity to

prevent such disclosures. 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.

Using this information, Adobe was able to identify Yershov and

link the videos he had viewed to his individualized profile

maintained by Adobe.

II.

We review de novo a district court's decision to dismiss

a complaint for failure to state a claim under Federal Rule of

Civil Procedure 12(b)(6). Cardigan Mountain Sch. v. N.H. Ins.

Co., 787 F.3d 82, 84 (1st Cir. 2015). In conducting this review,

"we accept as true all well-pled facts alleged in the complaint

and draw all reasonable inferences in [the plaintiff's] favor."

Evergreen Partnering Grp., Inc. v. Pactiv Corp., 720 F.3d 33, 36

(1st Cir. 2013). A plaintiff's allegations are sufficient to

overcome a Rule 12(b)(6) motion if they contain "enough facts to

state a claim to relief that is plausible on its face." Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 569 (2007).

Congress enacted the VPPA in response to a profile of

then-Supreme Court nominee Judge Robert H. Bork that was published

by a Washington, D.C., newspaper during his confirmation hearings.

S. Rep. No. 100–599, at 5 (1988), reprinted in 1988 U.S.C.C.A.N.

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4342–1. The profile contained a list of 146 films that Judge Bork

and his family had rented from a video store. Id. Members of

Congress denounced the disclosure as repugnant to the right of

privacy. Id. at 5–8. Congress then passed the VPPA "[t]o preserve

personal privacy with respect to the rental, purchase or delivery

of video tapes or similar audio visual materials." Id. at 1.

To effectuate this purpose, Congress in the VPPA created

a civil remedy against a "video tape service provider" for

"knowingly disclos[ing], to any person, personally identifiable

information concerning any consumer of such provider." 18 U.S.C.

§ 2710(b)(1).2 The statute defines the two terms at issue in this

case as follows:

(1) the term "consumer" means any renter,
purchaser, or subscriber of goods or services
from a video tape service provider;

. . .

(3) the term "personally identifiable
information" includes information which
identifies a person as having requested or
obtained specific video materials or services
from a video tape service provider[.]

Id. § 2710(a)(1), (3).

2While Gannett claimed in its motion papers that it is not a
"video tape service provider" under the VPPA, it did not challenge
the sufficiency of Yershov's pleading as to this element of the
claim.

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 A.

We agree with the district court that the information

about Yershov that Gannett disclosed to Adobe fits the definition

of PII. The statutory term "personally identifiable information"

is awkward and unclear. The definition of that term ("identifies

a person as having [obtained a video]") adds little clarity beyond

training our focus on the question whether the information

identifies the person who obtained the video. See id.

§ 2710(a)(3). Nevertheless, the language reasonably conveys the

point that PII is not limited to information that explicitly names

a person. Had Congress intended such a narrow and simple

construction, it would have had no reason to fashion the more

abstract formulation contained in the statute. See United States

v. New Eng. Coal & Coke Co., 318 F.2d 138, 144 (1st Cir. 1963).

Moreover, the language Congress did use to define PII begins with

the word "includes." 18 U.S.C. § 2710(a)(3). That word normally

implies that the proffered definition falls short of capturing the

whole meaning. See In re Fahey, 779 F.3d 1, 5-6 (1st Cir. 2015)

(explaining how its interpretation satisfied "the premise that

when a statute states that the universe of X 'includes' Y, one

normally presumes that Y is merely an example of what is in X, and

that X includes more than Y"). Here, we also have the benefit of

the official Senate Report expressly stating that the drafters'

aim was "to establish a minimum, but not exclusive, definition of

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personally identifiable information." S. Rep. No. 100-599, at 12.

This makes sense. Many types of information other than a name can

easily identify a person. Revealing a person's social security

number to the government, for example, plainly identifies the

person. Similarly, when a football referee announces a violation

by "No. 12 on the offense," everyone with a game program knows the

name of the player who was flagged.

Here, the complaint and its reasonable inferences

describe what for very many people is a similar type of

identification, effectively revealing the name of the video

viewer. To use a specific example, imagine Gannett had disclosed

that a person viewed 146 videos on a single device at 2 sets of

specified GPS coordinates. Given how easy it is to locate a GPS

coordinate on a street map,3 this disclosure would enable most

people to identify what are likely the home and work addresses of

the viewer (e.g., Judge Bork's home and the federal courthouse).

And, according to the complaint, when Gannett makes such a

disclosure to Adobe, it knows that Adobe has the "game program,"

so to speak, allowing it to link the GPS address and device

identifier information to a certain person by name, address, phone

3
A U.S government website reports findings that, in 2011,
the GPS accuracy on Android smart phones ranged from five to
eight meters. How Accurate is the GPS on my Smart Phone? (Part
2), U.S. Nat'l Libr. Med. (July 7, 2014),
http://communityhealthmaps.nlm.nih.gov/2014/07/07/how-accurate-
is-the-gps-on-my-smart-phone-part-2/.

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number, and more. While there is certainly a point at which the

linkage of information to identity becomes too uncertain, or too

dependent on too much yet-to-be-done, or unforeseeable detective

work, here the linkage, as plausibly alleged, is both firm and

readily foreseeable to Gannett. The complaint therefore

adequately alleges that Gannett disclosed information reasonably

and foreseeably likely to reveal which USA Today videos Yershov

has obtained.

B.

We turn now to a closer question: Does the complaint

adequately allege facts plausibly establishing that Yershov is a

"consumer" in relation to Gannett within the meaning of the

statute? In arguing that his complaint adequately makes such an

allegation, Yershov limits himself to arguing that he is a

"subscriber" within the meaning of § 2710(a)(1), so we limit our

own inquiry accordingly. For the following reasons, we think that

Yershov is a "subscriber."

We begin with the statutory text. Because it contains

no definition of the term "subscriber," nor any clear indication

that Congress had a specific definition in mind, we assume that

the "plain and ordinary meaning" of the word applies. In re Hill,

562 F.3d 29, 32 (1st Cir. 2009). To delineate the plain and

ordinary meaning of the word "subscriber," we first look to its

dictionary definition. See In re JPMorgan Chase Bank, N.A., 799

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F.3d 36, 43 (1st Cir. 2015). All dictionaries appear to be clear

that a "subscriber" is one who subscribes. See, e.g., Merriam-

Webster's Collegiate Dictionary 1244 (11th ed. 2012). As for the

meaning of the word "subscribe" itself, the dictionaries provide

us with various choices. As the first relevant definition of

"subscribe," Merriam-Webster provides "to enter one's name for a

publication or service." Id. More on point technologically,

another dictionary defines "subscribe" as "[t]o receive or be

allowed to access electronic texts or services by subscription"

with "subscription" defined, in turn, to include "[a]n agreement

to receive or be given access to electronic texts or services."

The American Heritage Dictionary 1726 (4th ed. 2000). This is

just what we have here: Gannett offered and Yershov accepted

Gannett's proprietary mobile device application as a tool for

directly receiving access to Gannett's electronic text and videos

without going through other distribution channels, much like how

a newspaper subscriber in 1988 could, if he wished, retrieve a

copy of the paper in a box at the end of his driveway without

having to go look for it at a store.

We recognize that there are other common definitions of

the term "subscribe" that include as an element a payment of some

type and/or presume more than a one-shot transaction. See The

Random House Dictionary of the English Language 1896 (2nd ed. 1987)

(defining the term "subscriber" as "a person . . . that

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subscribes . . . to a publication," the term "subscribes" as "to

obtain a subscription," and the term "subscription" as "the right

to receive a periodical for a sum paid, usually for an agreed

number of issues"). Yershov's decision to download the App seems

a fair enough indication that he intended more than a one-shot

visit. He makes no claim, though, that he was required to pay any

money. So the question is posed: Should we read the statutory

term "subscriber" as incorporating monetary payment as a necessary

element, or rather as encompassing the broader common definition

of the term?

Looking at the statute, we first note that if the term

"subscriber" required some sort of monetary payment, it would be

rendered superfluous by the two terms preceding it. Presumably a

person in 1988 who exchanged payment for a copy of a video either

retained ownership of the video outright, thereby becoming a

"purchaser" of the video, or received temporary possession of the

video for a set period of time, thereby becoming a "renter."

Congress would have had no need to include a third category of

persons protected under the Act if it had intended that only

persons who pay money for videos be protected, which militates

against an interpretation of the statute incorporating such an

element. See Nat'l Org. Marriage v. McKee, 649 F.3d 34, 66 (1st

Cir. 2011) ("[A] statute should "'be so construed that, if it can

be prevented, no clause, sentence, or word shall be superfluous,

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void, or insignificant.'" (quoting TRW Inc. v. Andrews, 534 U.S.

19, 31 (2001))).

Consider, too, the reasonably common retailing practice

of introductory enticements. Suppose a customer in 1988 obtained

several videos from a new commercial supplier at no charge, or

with money back. We can discern no reason why Congress would have

wanted different disclosure rules to apply to those transactions

than to ones where a monetary payment is made. And because we

think that Congress cast such a broadly inclusive net in the brick-

and-mortar world, we see no reason to construe its words as casting

a less inclusive net in the electronic world when the language

does not compel that we do so. See Barr v. United States, 324

U.S. 83, 90 (1945) ("[I]f Congress has made a choice of language

which fairly brings a given situation within a statute, it is

unimportant that the particular application may not have been

contemplated by the legislators.").

Our unwillingness to adopt one of the narrower meanings

of "subscriber" rests as well on our recognition that Congress

itself, in 2012, considered the impact of the VPPA on the

electronic distribution of videos and chose only to make consent

easier to obtain, rather than limiting the reach of the Act in the

absence of consent. See 158 Cong. Rec. H6849–01 (Dec. 18, 2012).

Congress left untouched the definition of "consumer" in the

statute, which we believe supports an inference that Congress

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understood its originally-provided definition to provide at least

as much protection in the digital age as it provided in 1988. For

the aforementioned reasons, we therefore decline to interpret the

statute as incorporating monetary payment as a necessary element.

We have also considered the opinion of the Eleventh

Circuit in Ellis v. Cartoon Network, Inc., 803 F.3d 1251 (11th

Cir. 2015). While the court in Ellis agreed that one can be a

"subscriber" without making a monetary payment, it nonetheless

found that the plaintiff's acts of downloading and using a free

mobile device application from the Cartoon Network did not make

him a "subscriber" under the VPPA. Id. at 1256-58. Expressly

tracking the reasoning of the Massachusetts district court in this

case, Ellis construed the term "subscriber" to "involve[] some

type of commitment, relationship, or association (financial or

otherwise) between a person and an entity," id. at 1256, and thus

expressed its agreement with the district court in this case that

subscriptions "involve some or [most] of the following [factors]:

payment, registration, commitment, delivery, [expressed

association,] and/or access to restricted content," id.

(alterations in original) (quoting Yershov v. Gannett Satellite

Info. Network, Inc., 104 F. Supp. 3d 135, 147 (D. Mass. 2015)).

It then found that there existed too few factors in the particular

case before it, explaining that the plaintiff did not "sign up for

or establish an account," "make any payments," "become a registered

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user," "receive a Cartoon Network ID," "establish a Cartoon Network

profile," "sign up for any periodic services or transmissions," or

"make any commitment or establish any relationship that would allow

him to have access to exclusive or restricted content." Id. at

1257. The Ellis court was also under the impression that the user

of the application in that case did not have "to provide any

information to Cartoon Network." Id. at 1254.

We would describe the allegations (and their reasonable

inferences) in this case quite differently. To use the App,

Yershov did indeed have to provide Gannett with personal

information, such as his Android ID and his mobile device's GPS

location at the time he viewed a video, each linked to his viewing

selections. While he paid no money, access was not free of a

commitment to provide consideration in the form of that

information, which was of value to Gannett. And by installing the

App on his phone, thereby establishing seamless access to an

electronic version of USA Today, Yershov established a

relationship with Gannett that is materially different from what

would have been the case had USA Today simply remained one of

millions of sites on the web that Yershov might have accessed

through a web browser.

Ellis, like the district court, also presumed that

downloading a mobile device application "is the equivalent of

adding a particular web site to one's Internet browser as a

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favorite." Id. at 1257. We do not think that such a presumption

is so apparently true as to dictate our reading of the complaint,

which concedes no such equivalence. Why, after all, did Gannett

develop and seek to induce downloading of the App? And it is by

no means self-evident that the version of USA Today one accesses

with a browser is identical in all respects to the electronic

version one accesses with the App.

Our conclusion is further informed by positing a non-

electronic version of the electronic relationship between Yershov

and Gannett. Imagine that Gannett had installed a hotline at

Yershov's home, for free, allowing him to call Gannett and receive

instant delivery of videos in exchange for his name and address,

and he then used the hotline over the course of many months to

order videos. We doubt that Congress would have intended that

Gannett would have been free in such a scenario to publish

Yershov's PII by claiming that he was not a purchaser, renter, or

subscriber. This physical world hypothetical is admittedly

unrealistic, but only because installing a hotline is expensive in

comparison to the value of obtaining Yershov's name and address.

Here, by contrast, the marginal cost to Gannett of maintaining the

App for Yershov and electronically allowing him to access its video

content through it may well be less than the value to Gannett of

having Yershov use the App and provide his PII. We see nothing in

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these differences, though, to find Yershov to be a subscriber in

one scenario and not the other.

Our actual holding, in the end, need not be quite as

broad as our reasoning suggests. We need simply hold, and do hold,

only that the transaction described in the complaint--whereby

Yershov used the mobile device application that Gannett provided

to him, which gave Gannett the GPS location of Yershov's mobile

device at the time he viewed a video, his device identifier, and

the titles of the videos he viewed in return for access to

Gannett's video content--plausibly pleads a case that the VPPA's

prohibition on disclosure applies. As is often true with

Rule 12(b)(6) motions, further development of the facts may cast

that which is alleged in a different light. For example, does

Gannett itself classify those who access its content through the

App differently from those who access its website only? Are the

content and format the same through either channel? Does access

through the App generate value for Gannett that website access

does not? Is Yershov correct about the extent to which Adobe

foreseeably can identify him? Answers to these and similar

questions may enable a more refined, and possibly different,

conclusion on the ultimate question of whether Gannett has violated

the VPPA. For now, though, the facts that Yershov alleges,

together with reasonable inferences drawn from those facts,

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plausibly describe a relationship between Yershov and Gannett,

combined with a disclosure by Gannett, that ran afoul of the VPPA.

III.

The district court's decision is reversed and this case

is remanded for further proceedings consistent with this opinion.

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