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Is Your Device ID “Personal”? Federal Appeals Court to Decide Under VPPA

By Sheila Millar & Tracy Marshall on May 22, 2015
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A federal appellate court will consider early next month whether the Video Privacy Protection Act (VPPA) makes an “Android ID” – a device identifier used in Google’s smartphones –personally identifiable information (PII). The Eleventh Circuit has scheduled oral argument in the case, Ellis v. Cartoon Network, Inc., for June 3, 2015.

The plaintiff in the putative class action, Mark Ellis, downloaded the Cartoon Network app, which he used to watch video clips on his Android device. With each use of the app, the user’s video history and Android ID are transmitted to a third-party data analytics provider, Bango, based in the United Kingdom. Bango could use the information to identify Ellis by combining its information with information collected from other sources. The question is whether the Android ID constitutes PII under the VPPA. An Atlanta federal district court previously ruled against Ellis, dismissing his case and finding that an “Android ID, without more, is not [PII].” Ellis v. Cartoon Network, Inc., Case No. 1:14-CV-484-TWT (N.D. Ga. Oct. 8, 2014).

In several recent similar cases, judges have ruled that the serial number for a Roku TV box (a video streaming device) was not PII under the VPPA (see Locklear v. Dow Jones & Co., Case No. 1:14-cv-007445-MHC (N.D. Ga. Jan. 23, 2015); Eichenberger v. ESPN, Inc., Case No. C14-463 TSZ (W.D. Wash. May 7, 2015)); that “anonymous user IDs, a child’s gender and age, and information about the computer used to access Viacom’s websites” likewise were not PII under the VPPA (see In re Nickelodeon Consumer Privacy Litig., No. Civ. A. 12-07829 (D.N.J. July 2, 2014)); and that a comScore anonymous identifier used by Hulu was not PII under the VPPA (see In re Hulu Privacy Litig., No. C 11-03764 LB (N.D. Cal. Apr. 28, 2014).

With this history, it would not be unexpected for the court to rule in favor of Cartoon Network in this case. An appellate ruling in favor of the defendant here would be a welcome narrowing of potential VPPA claims, which have proliferated as of late given the growth of over-the-Internet streaming video services. A related complexity for those offering kid-oriented apps, however, are provisions in the FTC’s Children’s Online Privacy Protection Act (COPPA) Rule, which does define device IDs as PII when associated with individually identifiable information, but exempts such collection from parental consent requirements when used to support internal operations.

Regardless of how the court rules, the evolving nature of technology means that questions of whether and when device or other IDs should be considered “PII” will continue to pose thorny issues. Broad categorization of such identifiers as PII could result in significant restrictions on collection of the type of data designed to improve services and offer appropriate content, so the case bears close watching.

Photo of Sheila Millar Sheila Millar

Sheila A. Millar is a partner at Keller and Heckman LLP, where she represents businesses and trade associations on a variety of public policy and regulatory issues, including privacy, data security, cybersecurity and advertising matters, as well as product safety issues. She has…

Sheila A. Millar is a partner at Keller and Heckman LLP, where she represents businesses and trade associations on a variety of public policy and regulatory issues, including privacy, data security, cybersecurity and advertising matters, as well as product safety issues. She has been involved in a variety of audit and compliance projects, including, among other issues, privacy and data security audits, and is experienced in providing crisis management legal support to a variety of national and international companies and associations.

Ms. Millar is a frequent speaker on regulatory and public policy matters, and has authored many articles. Ms. Millar is one of the vice chairs of the International Chamber of Commerce (ICC) Marketing and Advertising Commission, and chair of its Working Group on Sustainability, where she spearheaded the development of the ICC Framework Guides on Environmental Marketing Claims.

Ms. Millar is AV® PreeminentTM Rated by Martindale-Hubbell and for the eigth consecutive year was selected by her peers for inclusion in The Best Lawyers in America® 2018 for her work in practicing Advertising Law. She has also received the distinguished honor of Advertising Law “Lawyer of the Year” 2014 in Washington, DC by Best Lawyers®, and was awarded Advertising and Marketing Lawyer of the Year USA by Finance Monthly for their Finance Monthly Global Awards 2017.

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Photo of Tracy Marshall Tracy Marshall

Tracy Marshall counsels international and domestic for-profit and non-profit clients on a range of privacy, data security, advertising, promotions, and intellectual property matters. She also advises on general corporate and transactional matters.

Tracy assists clients with compliance and advocates on their behalf. She …

Tracy Marshall counsels international and domestic for-profit and non-profit clients on a range of privacy, data security, advertising, promotions, and intellectual property matters. She also advises on general corporate and transactional matters.

Tracy assists clients with compliance and advocates on their behalf. She is a Certified Information Privacy Professional (CIPP/US) through the International Association of Privacy Professionals (IAPP) and helps clients implement privacy, data security, and security breach response programs, develop internal and public-facing privacy policies to comply with applicable laws, respond to cyber and data security incidents, and manage relationships with service providers and third parties. Tracy advises on structuring and conducting email and text messaging campaigns, sweepstakes, contests, and other promotions, and she helps clients protect and enforce their intellectual property rights.

In addition, Tracy counsels clients on corporate matters and assists with structuring and negotiating a variety of transactions, including licensing, marketing, and outsourcing arrangements.

Tracy is frequently invited to speak at privacy, data security, telecommunications, and advertising conferences and is a contributor to Keller and Heckman’s Consumer Protection Connection blog and Beyond Telecom Law Blog.


To learn more about Tracy’s practice areas, click here.
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  • Posted in:
    Technology and AI
  • Blog:
    Consumer Protection Connection
  • Organization:
    Keller Heckman
  • Article: View Original Source

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