Viacom, Google Reject Yershov v. Gannett Comparison in VPPA Appeal

The 1st U.S. Circuit Court of Appeals' April decision in Yershov v. Gannett Satellite Information Network shouldn't play any role in the 3rd Circuit's handling of an appeal of an unsuccessful Video Privacy Protection Act (VPPA) complaint brought against Viacom and Google, the companies said in 3rd Circuit filings (see here and here, in Pacer) Friday. The Yershov decision focused on VPPA definitions of "consumer" and "personally identifiable information," neither of which has bearing on the VPPA claims against Google, that company said. It said Yershov included "unwarranted broadening of the statutory text" when it said GPS coordinates could constitute personally identifiable information under the VPPA. Viacom similarly contrasted the case with Yershov, saying the disclosures at play in the VPPA complaint against it and Google consist of IP addresses and cookie identifiers, not GPS data, and the plaintiffs haven't offered a strong argument how that could lead to identification. "The disclosures in this case do not state a VPPA claim even under Yershov," Viacom said. The original lawsuit brought on behalf of a putative class of minors whose data was tracked when they went to various Nickelodeon websites was dismissed in 2015 by a U.S. District judge in Newark, New Jersey (see 1501220056), and the plaintiffs said in a 3rd Circuit filing (in Pacer) Thursday that the Viacom/Google disclosures included "even more detailed information than what was alleged in Yershov." The 1st Circuit with Yershov "became the first federal appellate court to determine whether unique computing device identifiers constitute [personally identifiable information] under the VPPA," the plaintiffs said, saying the 3rd Circuit should "adopt the well-reasoned logic of Yershov" and reverse the Newark court's decision. The 1st Circuit in Yershov reversed a U.S. District Court decision that Gannett did disclose information about a USA Today Mobile App user to a third party, but that user Alexander Yershov wasn't a consumer under VPPA.