Dow Jones Urges Appeals Court To Dismiss Privacy Case

A federal appeals court recently ruled that The Cartoon Network didn't violate video privacy laws by collecting information from people who downloaded the company's free app. Now, Dow Jones says it is entitled to prevail in a privacy lawsuit on the grounds that its app is similar to The Cartoon Network's.

Dow Jones filed papers Friday asking the 11th Circuit Court of Appeal to affirm a trial judge's decision to dismiss the privacy lawsuit brought by Roku user Terry Locklear. That case centered on allegations that the company's app automatically transmits 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. Locklear argued that these transmissions violate the Video Privacy Protection Act, which prohibits video providers from revealing subscribers' personally identifiable information about their video-watching history without their written consent.

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U.S. District Court Judge Mark Cohen in Atlanta dismissed Locklear's lawsuit in January on the grounds that any information transmitted to mDialog wasn't “personally identifiable."

Around the same time that Locklear sued Dow Jones, a different person -- Android user Mark Ellis -- filed a similar lawsuit against The Cartoon Network. Ellis alleged that the Cartoon Network wrongly transmitted information about his viewing history, combined with his device's “Android ID,” to the analytics company Bango.

U.S. District Court Judge Thomas Thrash, Jr. dismissed Ellis's lawsuit last year on the grounds that an Android ID isn't “akin to a name.”

Both Ellis and Locklear appealed the dismissals to the 11th Circuit. That court took up Ellis's case first, and then stayed proceedings in Locklear's appeal.

In October, a three-judge panel of the 11th Circuit ruled in favor of the Cartoon Network, but for different reasons than Thrash. The appellate judges said that Ellis's in-app viewing history wasn't covered by the video privacy law because he wasn't a "subscriber" to The Cartoon Network.

The panel said that people who download a free app aren't "subscribers" for purposes of the federal video privacy law. The judges said that subscriptions require people to make enter into a relationship with the company, beyond streaming a free video.

Dow Jones now draws on that ruling to argue that Locklear wasn't a "subscriber" to the company's app. "By her own allegations, Locklear has no relationship with Dow Jones, no continuing obligation to Dow Jones, and no repercussions for either using or not using the 'on demand' WSJ Channel app," the company writes. "Accordingly, Locklear is not a 'subscriber' under the VPPA for the same reasons Ellis is not a 'subscriber.'"

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