Court Says Free App Users are Consumers in USA Today Class Action

In a class action lawsuit alleging personal information about users of USA Today’s free app was transmitted to third parties without the user’s permission, a federal court ruled that the users should be considered consumers with rights under the Video Privacy Protection Act.

Lead plaintiff Alexander Yershov alleged in his class action lawsuit that USA Today should have asked his permission to send his personal data to third parties under the VPPA. USA Today argued that since the plaintiff and others did not have to pay to use their app, the requirement to ask permission under the VPPA did not apply.

Initially, a district court agreed with USA Today and dismissed the case on grounds that the plaintiff and other Class Members could not be considered consumers under the VPPA. The plaintiff appealed the class action to the U.S. Court of Appeals for the First Circuit and that court reversed the lower court’s decision.

In the class action lawsuit, the plaintiff alleged that he used the USA Today’s mobile app to access videos; however, when the plaintiff watched the video, unbeknownst to him, USA Today sent the title of the video, the GPS coordinates of the plaintiff’s phone and a unique identifier through a third party to Adobe Systems Inc.

The plaintiff claimed that this violated the VPPA, which prohibits video tape providers from sending consumers’ personally identifiable information to a third party without the consumers’ consent. The plaintiff further alleged that the VPPA specifically references consumers’ information that is linked to particular video content.

At issue in the class action lawsuit was whether the plaintiff and others who used the free application could be considered “consumers” under the VPPA. In their order, the First Circuit pointed out that the VPPA indicates that if a person rents, purchases or subscribes to a provider’s goods or services, then they should be considered a consumer.

“To use the app, [the plaintiff] did indeed have to provide [USA Today] 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,” pointed out the First Circuit in their ruling. “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.”

Yershov is represented by Benjamin H. Richman and J. Dominick Larry of Edelson PC; and Erica C. Mirabella of Mirabella Law LLC.

The USA Today App Video Privacy Class Action Lawsuit is Yershov v. Gannett Satellite Information Network Inc. d/b/a USA Today, Case No. 1:14-cv-13112-FDS, in the U.S. District Court for the District of Massachusetts.

UPDATE: On Sept. 2, 2016, a federal judge ruled that Gannett must face a class action lawsuit alleging it violates a video privacy law by sending a third party data-analytics company personal information about people who downloaded its USA Today app.