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Abstract

Today, the majority of videos are obtained online, rather than in a video rental store.  Nonetheless, understanding the Video Privacy Protection Act (VPPA) is more crucial today than it was nearly 30 years ago.  This is because online video service providers and third-party data collectors have a greater ability to track, monitor, and identify users in significant detail through a process known as reverse engineering.  Despite these precautions, two computer scientists uncovered the identities of numerous Netflix subscribers by linking the released data profiles to customer reviews visible on the Internet Movie Database.  The resulting data breach exposed sensitive user information, such as sexual orientation and political affiliations.  Accordingly, the VPPA provides a valuable remedy for many disgruntled consumers whose privacy expectations have been compromised.  Unfortunately, the challenge in applying an out-of-date privacy protection law in our modern technological era has led to disagreement and confusion among the federal circuit courts.  Resolving this dispute is essential to adequately protecting the privacy interests of online video subscribers.

The purpose of this Note is to address the applicability of the VPPA to videos viewed on mobile devices through downloaded applications (“apps”).  The fundamental issue presented is whether the user of a free mobile application constitutes a “subscriber” under the VPPA.  The following section describes the legal evolution of the VPPA since its creation, including the conflicting interpretations of the term “subscriber” between the First and Eleventh Circuits. Section III employs the concept of “push notifications” to create a bright-line test for determining when the use of a free mobile application qualifies as a subscription for purposes of the VPPA.

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