Enjoying Your "Free" App? The First Circuit's Approach to an Outdated Law in Yershov v. Gannett Satellite Information Network, Inc.

Abstract

On April 29, 2016, in Yershov v. Gannett Satellite Information Network, Inc. (“Yershov II”), the U.S. Court of Appeals for the First Circuit held that the Video Privacy Protection Act (“VPPA”) of 1988 extended to a free application provider who disclosed its users’ GPS coordinates, phone identification numbers, and video histories to a data analytics company. In a similar case, the U.S. Court of Appeals for the Eleventh Circuit held that the VPPA did not apply because the relationship was too weak to render the user a “subscriber” under the Act. The U.S. Court of Appeals for the Third Circuit––in an opinion immediately following Yershov II––also adopted a tentative approach when limiting the VPPA’s application to technological innovations. This Comment argues that the First Circuit’s application of the VPPA to new technology properly analogized the Act in line with its text and legislative intent. Because analogies carry some uncertainty and until an agency regulates the area, courts should err on the side of upholding consumer privacy rights and focus on transparency. This approach, showcased by the First Circuit in Yershov II and hesitated on by the Eleventh and Third Circuits, allows for greater predictability in a developing area of the law and re-establishes consumer control for online personal information.