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Perry v. Cable News Network, Inc.

United States Court of Appeals, Eleventh Circuit

April 27, 2017

RYAN PERRY, Plaintiff - Appellant,
v.
CABLE NEWS NETWORK, INC., Delaware corporation, CNN INTERACTIVE GROUP, INC., a Delaware corporation, Defendants-Appellees.

         Appeal from the United States District Court for the Northern District of Georgia

          Before WILSON and BLACK, Circuit Judges, and RESTANI, [*] Judge.

          RESTANI, Judge

         Appellant Ryan Perry ("Perry") appeals the district court's dismissal of his complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court held that Perry failed to state a claim under the Video Privacy Protection Act ("VPPA") both because Perry is not a statutory "consumer" and the information at issue is not "personally identifiable information." The district court also reasoned that Perry's proposed amendments to his complaint would be futile. We affirm.

         BACKGROUND

         According to Perry's complaint, Appellee Cable News Network, Inc. is a producer of news programming for television. Cable News Network, Inc. along with its subsidiary Appellee CNN Interactive Group, Inc. (collectively, "CNN") offer media content on a mobile software application (or "app"), and Perry alleges that CNN's proprietary app (the "CNN App") is available for download on mobile devices, including on Apple, Inc. ("Apple")'s iPhone. Through the CNN App, users can get breaking news alerts, follow stories, and watch video clips and coverage of live events.

         The CNN App may be downloaded through the Apple iTunes Store. The CNN App never seeks the user's consent to disclose the user's personal data to any third parties. Perry, who is a citizen of Illinois, began using the CNN App in early 2013 on his iPhone. He never consented to allow CNN to disclose his personally identifiable information.

         Perry alleges that the CNN App, without a user's knowledge, both tracks the user's views of news articles and videos and also collects a record of this viewing activity. When a user closes the CNN App, CNN sends the collected record of viewing activity to a company called Bango, a third party company that conducts data analytics. CNN also sends Bango a media access control address ("MAC address"), which is a unique string of numbers associated with a particular user's specific mobile device.

         Bango then uses the MAC address to link an internet user's unique device identifier to the user's other internet activity in order to understand the user's online behavior. Bango constructs a digital file related to the user's online behavior by accessing information available to Bango from an extensive range of networks and devices. Bango is able to compile personal information, including the user's name, location, phone number, email address, and payment information, and it can attribute this information to a single user across different devices and platforms.

         On February 18, 2014, Perry filed a proposed class action in the district court. In his first amended complaint, Perry sets forth one cause of action for violation of the VPPA, 18 U.S.C. § 2710. Perry seeks injunctive relief and both statutory and punitive damages due to CNN's allegedly unlawful disclosures of personally identifiable information.

         Following this court's opinion in Ellis v. Cartoon Network, Inc., 803 F.3d 1251 (11th Cir. 2015), in which we affirmed the dismissal of a complaint bringing similar allegations pursuant to the VPPA, Perry sought leave of the district court to amend his complaint. On April 20, 2016, the district court granted CNN's motion to dismiss the amended complaint, reasoning that further amendment to the complaint would be futile. Perry appeals.

         JURISDICTION AND STANDARD OF REVIEW

         We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291. We review de novo the issue of whether a party has standing. Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1251 (11th Cir. 2015). We also review de novo a district court's decision to deny leave to amend ...


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