Cartoon Network Urges 11th Circuit To Reject Appeal In Video Privacy Case

The Cartoon Network is asking appellate judges to reject Android user Mark Ellis's request to revive his video privacy lawsuit. The company argues that transmitting Android devices' 64-digit identifiers -- combined with names of videos that users watched -- to an analytics company doesn't violate the federal Video Privacy Protection Act.

“Ellis seeks to turn the act of counting how many people watch videos into a violation of the VPPA, a statute passed in 1988 to prevent video stores from giving out customer names without permission,” the Cartoon Network says in an appellate brief filed on Tuesday.

Ellis' lawsuit centers on allegations that Cartoon Network wrongly transmitted information about his viewing history, combined with his device's Android ID, to the analytics shop Bango. He argues that those alleged transmissions violated the Video Privacy Protection Act -- a 1988 law that prohibits video rental companies from disclosing users' “personally identifiable information” without their permission.

Last year, U.S. District Court Judge Thomas Thrash, Jr. dismissed the lawsuit on the grounds that an Android ID isn't equivalent to a consumer's name.

Ellis recently asked the 11th Circuit Court of Appeals tor reverse that decision. He argues that even data that appears to be anonymous can be personally identifiable, depending on the circumstances. Specifically, he says that information “identifies a person when the recipient of that information understands to whom it refers.”

He also says that Bango was able to match Android IDs to actual people by drawing on outside databases.

The Cartoon Network is urging the 11th Circuit to reject that argument and rule that transmitting an Android ID doesn't violate the video privacy law. “Information that is not personally identifiable when held by Cartoon Network cannot become personally identifiable when given to some recipients and not others,” the company says.

The Time Warner-owned channel adds that accepting Ellis's argument would pose a risk to “thousands” of sites and apps that disclose information about what users watch and their IP addresses, cookie IDs or device IDs.

“Nearly every transaction on the internet captures a number like one of these,” the Cartoon Network writes. “If the VPPA applies every time such a number is transmitted along with information about a video watched, it will place significant new duties on every video provider to interrogate third parties to determine whether they have the ability to identify any users using information received from the provider.”

The company adds: “The VPPA was never intended to require such steps or regulate the entire Internet.”

The Cartoon Network isn't the only company facing litigation for allegedly transmitting device identifiers or other “anonymous” data. Dow Jones also was sued for allegedly sending information about The Wall Street Journal Live clips that users view -- along with the serial number of their Roku devices -- to the analytics and video ad company mDialog. A federal judge in Atlanta recently dismissed that lawsuit, ruling that any data allegedly transmitted to mDialog wasn't personally identifiable.


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