• by Wendy Davis  @wendyndavis, June 8, 2016

A federal appellate court won't reconsider an earlier ruling that Gannett may have violated a video privacy law by allegedly sending Adobe information about people who downloaded USA Today's app.

A majority of the judges on the 1st Circuit Court of Appeals voted against re-hearing the case, according to court records that became public late Tuesday.

The move leaves Gannett facing a potential class-action filed by Massachusetts resident Alexander Yershov, who alleges the USA Today app violated the federal Video Privacy Protection Act by sharing information about Android users -- including device identifiers, geolocation data and video viewing history -- with Adobe.

Gannett argued that the case should be dismissed at an early stage for several reasons. The company contended that Android device identifiers -- a string of numbers unique to each device -- are not personally identifiable information. The company also says people who download a free app aren't "subscribers."

A trial judge dismissed the case, but a three-judge panel of the 1st Circuit unanimously revived the potential class-action lawsuit. The appellate judges wrote that device identifiers combined with geolocation data could be personally identifiable.

The opinion pointed to allegations that Adobe has additional information enabling it to link GPS addresses and device identifiers to particular names, addresses and phone numbers. But the judges also noted that additional development of the case -- including whether Adobe "foreseeably can identify" users -- might ultimately result in dismissal.

Earlier this month, Gannett asked the court to reconsider its ruling. The IAB, New York Times and others supported that request, arguing that the decision marked an "unwarranted and unprecedented expansion" of the Video Privacy Protection Act. They added that the decision "risks exposing companies to broad class action liability for routine digital transactions that are essential to online content distribution."