• by Wendy Davis  @wendyndavis, December 14, 2015

An appeals court is standing firm on its recent decision that the federal video privacy law doesn't apply to content streamed through The Cartoon Network's free mobile app.

The 11th Circuit Court of Appeals didn't give a reason for its ruling, issued on Friday. Jay Edelson, the lawyer who brought the privacy lawsuit on behalf of Android user Mark Ellis, tells MediaPost that no decision has yet been made about whether to seek Supreme Court review.

Assuming the ruling stands, The Cartoon Network won't have to face a potential class-action lawsuit accusing it of violating the Video Privacy Protection Act by sharing data about consumers with the analytics company Bango. That law prohibits video companies from sharing personally identifiable information about the viewing history of "subscribers," "renters," or "purchasers."

A three-judge panel of the 11th Circuit said in an October decision that people who download the Cartoon Network's free mobile app aren't "subscribers" to the service. Therefore, the court ruled, the company didn't violate the federal law.

That decision appears to mark the first time a federal appellate court has addressed how the 27-year-old federal privacy law applies to streaming video. Congress passed the measure after a newspaper obtained the video rental records of Robert Bork, who had been nominated (unsuccessfully) to serve on the U.S. Supreme Court.

Last month Edelson asked the entire 11th Circuit to hear the case. He argued that the panel's decision "unwittingly licensed video providers to disclose -- to anyone, at any time, and for any reason -- the viewing history and identity of any person who watches videos on a smartphone or tablet app."

Ellis first sued The Cartoon Network last year. U.S. District Court Judge Thomas Thrash, Jr. in Georgia dismissed the case on the grounds that an Android ID is not personally identifiable.

Ellis appealed to the 11th Circuit, arguing that data that might appear to be “anonymous” -- like the random characters in an Android ID -- can be personally identifiable. He also says that Bango was able to match Android IDs to actual people by drawing on outside databases. The appellate judges said in October that they didn't need to decide whether an Android ID is personally identifiable, given their ruling that Ellis wasn't a subscriber to Cartoon Network.