On October 9, 2015, the US Court of Appeals for the Eleventh Circuit affirmed the US District Court for the Northern District of Georgia's dismissal of Ells v. Cartoon Network, Inc.. While the district court dismissed based on the Video Privacy Protection Act's (VPPA) definition of personally identifiable information (PII), the Eleventh Circuit affirmed the dismissal on the grounds that Mark Ellis was not a subscriber and consumer under the VPPA and declined to address the statute's definition of PII (No. 14-15046, (11th Cir. Oct. 9, 2015)).

Cartoon Network, Inc. (CN), makes a free mobile app available for individuals to use to watch video clips or episodes of network TV shows. Although a user may create an account through the app, it is possible to view free content on the app without providing any information to CN. The app does not ask or require users to consent to share or disclose any PII to third parties.

Ellis sued CN after discovering that it sent records of the videos Ellis watched through its free app to a third-party behavioral tracking company. In addition to tracking the videos Ellis watched through the app, CN also kept track of his device's Android ID number, a number that is unique to his Android device. Ellis' Android ID was sent to the third party in connection with his viewing history.

Although the district court ultimately granted CN's motion to dismiss, the court first concluded that Ellis was a subscriber and consumer under the VPPA because he had downloaded the app onto his smartphone. In a matter of first impression on the circuit, the Eleventh Circuit considered whether a person who downloads a free app to view free content, without more, is a subscriber under the VPPA. As the VPPA does not define subscriber, the court considered the ordinary meaning of the word and noted that although some dictionaries define subscriber to involve payment, others note that it is not a necessary element.

Subsequently, the court looked at Yershov v. Gannett Satellite Info. Network, Inc., where the US District Court for the District of Massachusetts reasoned that for a free mobile app user to be considered a subscriber, one or more of the following indicia of subscription must be present:

(No. 14–13112, (D. Mass. May 15, 2015)).

In determining that Ellis was not a subscriber to the CN app, the court reasoned that Ellis failed to do any of the following:

Because none of these indicia of subscription were present, the court concluded that Ellis merely watched free video clips on the app without any ongoing commitment or relationship between him and CN, which is insufficient to make him a subscriber under the VPPA. Accordingly, the Eleventh Circuit affirmed the district court's dismissal of Ellis' complaint. Notably, because the court determined that Ellis was not a subscriber under the VPPA it chose not to address whether the information collected by CN was PII under the act.