Appeals Court Sides With CNN In App Privacy Battle

A federal appellate court has sided with CNN in a dispute over whether its iTunes app violated a federal privacy law by allegedly sharing data about consumers with the analytics company Bango.

A three-judge panel of the 11th Circuit Court of Appeals ruled that people who download CNN's iTunes app aren't "subscribers" to the service. Therefore, the court ruled, the company didn't violate the Video Privacy Protection Act, which prohibits video companies from sharing personally identifiable information about "subscribers," "renters," or "purchasers."

The decision upheld a trial judge's dismissal of iPhone user Ryan Perry's class-action complaint against CNN.

"Perry is not a subscriber of CNN because he has not demonstrated an ongoing commitment or relationship with CNN," the judges wrote in a 15-page opinion issued late last week.

The battle dates to 2013, when Perry alleged that CNN sent his iPhone's Media Access Control address -- 12 random numbers and letters -- to Bango. (The year after Perry filed the lawsuit, Apple began restricting third parties from accessing MAC addresses as identifiers.)

He argued that Bango was able to combine the MAC address with other information in order to figure out users' identities.

A trial judge dismissed the case, ruling that Perry wasn't a "subscriber" to CNN, and that the app didn't disclose personally identifiable information about him.

Perry then asked the 11th Circuit Court of Appeals to revive the lawsuit, arguing that the trial judge wrongly decided both of the key issues.

Among other arguments, he said he should have been given the opportunity to reformulate his complaint to include allegations related to his cable TV subscription. Specifically, he contended that he should be considered a subscriber to CNN because his cable video subscription enabled him to access live TV on the app.

The 11th Circuit judges rejected that position. "Perry’s choice to watch CNN live on the CNN App (after logging in) rather than on his television does not somehow convert him into a subscriber of CNN," the judges wrote. "Outside of downloading the CNN App and perhaps acknowledging in the app that he has a cable television subscription, there is no indication that Perry has engaged CNN in any other way in order to gain access to this exclusive feature."

The appellate judges didn't rule on whether MAC addresses should be considered personally identifiable.

In 2015, the same appellate court sided with the Cartoon Network in a similar dispute over whether the company's app violated the federal video privacy rule. The judges in that case also ruled that people who downloaded the Cartoon Network's app shouldn't be considered subscribers.

But last year a different court, the 1st Circuit Court of Appeals, revived a lawsuit accusing Gannett of violating the video privacy law by allegedly transmitting data about people who downloaded USA Today's app. The judges in that case found that a consumer who downloaded the free app was a subscriber because he had to provide Gannett with information, including his Android device's ID, to use the app. That matter was dismissed earlier this year, after the Android user who sued Gannett withdrew the complaint.

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