From Blockbuster to Big Brother: How an Increase in Mobile Phone Apps Has Led to a Decrease in Privacy Under the Video Privacy Protection Act
Total Page：16
File Type：pdf, Size：1020Kb
Florida Law Review Volume 71 Issue 4 Article 4 From Blockbuster to Big Brother: How an Increase in Mobile Phone Apps Has Led to a Decrease in Privacy Under the Video Privacy Protection Act Carlee Rizzolo Follow this and additional works at: https://scholarship.law.ufl.edu/flr Part of the Privacy Law Commons Recommended Citation Carlee Rizzolo, From Blockbuster to Big Brother: How an Increase in Mobile Phone Apps Has Led to a Decrease in Privacy Under the Video Privacy Protection Act, 71 Fla. L. Rev. 1069 (). Available at: https://scholarship.law.ufl.edu/flr/vol71/iss4/4 This Note is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized editor of UF Law Scholarship Repository. For more information, please contact [email protected]. Rizzolo: From Blockbuster to Big Brother: How an Increase in Mobile Phone FROM BLOCKBUSTER TO BIG BROTHER: HOW AN INCREASE IN MOBILE PHONE APPS HAS LED TO A DECREASE IN PRIVACY UNDER THE VIDEO PRIVACY PROTECTION ACT Carlee Rizzolo* Abstract Congress enacted the Video Privacy Protection Act (VPPA or the Act) in 1988 to protect consumers by prohibiting video tape service providers from knowingly disclosing their personally identifiable information to any person, without first obtaining consent. The VPPA defines “consumer” as any renter, purchaser, or subscriber. However, the Act does not define the term “subscriber.” Over the past thirty years, there has been a rapid increase in the use of downloadable apps that allow individuals to watch videos and other online content for free on their mobile phones. Does the sole act of downloading a free app onto a mobile phone make an individual a protected “subscriber?” This question has challenged the scope of protection afforded by the VPPA to consumers and has created a circuit split between the United States Court of Appeals for the Eleventh Circuit and the United States Court of Appeals for the First Circuit. Both circuits have struggled to define “subscriber” and have struggled in determining when an individual’s conduct rises to the level of becoming a protected “consumer.” This Note argues for the resolution of the circuit split through a two-pronged approach. The first prong requires amending the VPPA to include a broad and unambiguous definition of “subscriber,” which will adequately protect the privacy rights of individuals that download and use free apps. The second prong requires implementing a balancing test consisting of several different factors that the courts must weigh and consider. The test will allow courts to broaden the scope of the VPPA to protect the rights of individuals who rise to the level of protected “consumers,” despite their actions not falling squarely into one of the statutory requirements. * J.D., University of Florida Levin College of Law 2019; B.S., Nova Southeastern University 2016. I would like to thank all of the student and staff editors of the Florida Law Review for their endless dedication, hard work, and support. I would also like to thank my Note advisors, Jacob Coates and Joey Mann, for their advice and guidance throughout the note-writing process. Lastly, I dedicate this Note to my parents, who have supported and encouraged all of my academic endeavors. 1069 Published by UF Law Scholarship Repository, 1 Florida Law Review, Vol. 71, Iss. 4 [], Art. 4 1070 FLORIDA LAW REVIEW [Vol. 71 INTRODUCTION ...................................................................................1070 I. AN OVERVIEW OF THE VPPA...............................................1072 A. The History Behind the VPPA: Why Change Now?.............................................................................1072 B. The Issue with Statutory Interpretation........................1075 II. A SPLIT AMONG THE CIRCUIT COURTS ................................1076 A. United States Court of Appeals for the Eleventh Circuit............................................................1076 1. Ellis v. Cartoon Network, Inc. ..............................1076 2. Perry v. CNN.........................................................1080 B. United States Court of Appeals for the First Circuit..................................................................1082 1. Yershov v. Gannett Satellite Info. Network Inc...........................................................1082 C. Summary of the Circuit Split ........................................1085 III. FIRST PRONG:ANEW DEFINITION .......................................1086 A. Policy and Privacy Concerns.......................................1086 B. The Definition of Subscriber ........................................1087 C. Summary of First Solution............................................1090 IV. SECOND PRONG:AUNIFORM TEST ......................................1091 A. The Balancing Test.......................................................1091 B. Implications of the Test ................................................1093 CONCLUSION.......................................................................................1093 INTRODUCTION An individual has a privacy interest in preventing their personal information from becoming public knowledge.1 Recognizing this right to privacy, Congress has continuously enacted statutes that “extend privacy protection to records that contain information about individuals.”2 In 1. U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 769 (1989). 2. S. REP.NO. 100-599, at 2–3 (1988), as reprinted in 1988 U.S.C.C.A.N. 4342-1, 4342-1 to 4342-3 (listing several federal statutes that were enacted to increase privacy rights, including: the Fair Credit Reporting Act of 1970, the Family Educational Rights and Privacy Act of 1974, the Privacy Act, the Tax Reform Act of 1976, the Right to Financial Privacy Act of 1978, the Privacy Protection Act of 1980, the Electronic Funds Transfer Act of 1980, the Fair Debt Collection Act, the Cable Communications Policy Act of 1984, and the Electronic Communications Privacy Act). https://scholarship.law.ufl.edu/flr/vol71/iss4/4 2 Rizzolo: From Blockbuster to Big Brother: How an Increase in Mobile Phone 2019] FROM BLOCKBUSTER TO BIG BROTHER 1071 1988, Congress passed the Video Privacy Protection Act (VPPA or the Act),3 “to preserve personal privacy with respect to the rental, purchase, or delivery of video tapes or similar audio visual materials.”4 The VPPA protects consumers by creating a civil remedy against video tape service providers who knowingly disclose their personally identifiable information to any person without first obtaining consent.5 The VPPA has extended privacy rights of individuals; however, its recent application to cases involving mobile phones has created a split among the circuit courts.6 The primary issue between the circuits concerns the statutory interpretation of an ambiguous and undefined term stated within the VPPA7: “subscriber.”8 Under 18 U.S.C. § 2710(b)(1), the only individuals who will receive protection under the VPPA are “consumer[s].”9 The statute defines a “consumer” as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.”10 However, an ambiguity lies within the definition of “consumer” in that it poses the question of what exactly constitutes a “subscriber.”11 A second ambiguity within the statute, though not as 3. Pub. L. No. 100-618, 102 Stat. 3195 (1988) (codified as amended at 18 U.S.C. § 2710 (2012)). 4. S. REP.NO. 100-599, at 1. 5. 18 U.S.C. § 2710(b)(1). 6. Compare Ellis v. Cartoon Network, Inc., 803 F.3d 1251, 1256–58 (11th Cir. 2015) (holding that an individual who downloads a mobile application onto his or her smartphone, to watch television episodes, is not a “subscriber” under the VPPA because the sole act of downloading an app to watch videos does not establish some type of ongoing relationship or commitment between the individual and the video provider), with Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482, 489 (1st Cir. 2016) (recognizing that an individual who downloads and installs a mobile application onto his or her phone, to access news and watch videos, establishes a relationship with the video tape service provider and may be a “subscriber” under the VPPA). 7. Wendy Beylik, Comment, Enjoying Your “Free” App? The First Circuit’s Approach to an Outdated Law in Yershov v. Gannett Satellite Information Network, Inc., 58 B.C. L. REV. E. SUPP. 60, 62–63 (2017), https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=3562 &context=bclr&_ga=2.76414224.489497517.1552501361-220379575.1552501361 [https://perma.cc/ 6CCE-EKYW] (“In applying the Act, courts have struggled to adapt its traditional verbiage to today’s electronic age, leading to uncertainty as to the extent of the VPPA’s online application.”). 8. 18 U.S.C. § 2710(a)(1) (listing the definition of “consumer,” which includes the undefined term “subscriber”). 9. Id. § 2710(b)(1) (“A video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person for the relief provided in subsection (d).”). 10. Id. § 2710(a)(1). 11. See id. (leaving the term “subscriber” undefined). Published by UF Law Scholarship Repository, 3 Florida Law Review, Vol. 71, Iss. 4 [], Art. 4 1072 FLORIDA LAW REVIEW [Vol. 71 heavily discussed by the circuit split, is what type of information constitutes “personally identifiable information.”12 This Note argues that Congress