on what counts as personally identifiable information is exactly right my friend's argument that only name and address together r p i i can't be squared with the text or the purpose of the statute i also think judge taylor and the eleventh circuit civilian in l s d cartoon network set out the correct legal standard that some type of durable relationship is required to be a subscriber and therefore a consumer under the video privacy protection act were both courts drifted off course was failing to recognize that mr your share of plausibly or alleged that he has the requisite type of relationship with connection and the result is one that completely gots the privacy protections that congress tried to put in place of this law there is no way congress drafted this law to allow usa today to publish judge bork or the percent of next nominees video viewing habits just because they were downloaded and collected through a free app and not a brick and mortar store so how would you describe the so there are several definitions of the ter subscriber and the one that we focus most heavily on our brief is that it's a ranging for access to a service or an online service you have to do something you have to go out and do so that's just another way of saying that there is a terrible relationship and that's what mr you're struck dead here he went to an online market selective usa today from two million other offerings downloaded its complex get there and if he signed up for the push notifications then your analogy would be but as i understand it even though you point out how the bush allegations the push notifications were which seem quite convincing as far as being subscriber is i have a complaint this is different allegation that your client yes for the push notifications there is not an allegation in the complaint that he opted for the push notifications but i don't think that's really just bought so then we fight for his purposes that means your analogy doesn't quite work he he only gets a newspaper delivered when he goes down and do the complaint that is just an inference about how applications work could have been more details yes i think our complaints fairly detailed about how all of this work but that was just a difference that i believe we should have gotten from the district co usa today will send things to that's correct and that would satisfy the particular periodic delivery aspect of several definitions but the one that my friend urges the court to follow and to allow his a basically disclose everything that people watch is that there was no registration there was no giving of personal information but by downloading me at your shop to get that all the information that it needs it gave him his android he gave his g p s and likely gave it much more by downloading the app that's defacto registering everyone agrees that registration or the exchange of personal information in exchange to get information is the subscription that have to register but it doesn't register personally i've been a fireball for identifying information so if it registers were did what machine to deliver it to but it doesn't register who the machine belongs to and it's the individual who is the privacy interest to protect that's true and i have two answers to your honor's question ok so first it's that the newspaper industry specifically of which this app is a part considers downloading an app and using it one type or one time per month to be the equivalent of registering to it's the equivalent of giving your name or your e mail address and they call those people in their words a digital subscriber that is it at least as persuasive and as plausible and inference that this person is a subscriber as the definitions that such sailor uses the po the you tube it's just that subscriber isn't used consistently and to the extent that android id only identifies a device the language that congress used here is very broad the language it uses includes information that identifies a person's a person and that accounts for something that identifies a device or a home or a car associated with that person judge orks account the patient zero of this particular act it wasn't location services i don't believe so so it automatically then takes off your phone your g p s coordinates when you say that's correct so look no least the phone standing here front of this and you're saying that what you it just doesn't know it's you it's then and there it just knows that your phone is sitting there i think chief justice roberts puts this best when he's talking about cell phones and riley versus california cell phones are such a pervasive part of daily life that a visitor from our suit came down with rightly conclude that there are probably an important feature of human anatomy the court goes on to then note that nearly every taking the android number and in fact determining the actual name of the person to whom the number was so yes the reason that they're collecting this information is that they're giving it to adobe who want a decision to make in photoshop you know a credit reporting agency like equifax or trans union yes in isolation on the four corners of the document the social security number appears to be a me and i'm anonymous number but if you give it to trans union you know that they know a whole host of information about something if you give a telephone number to the company that creates the phone book upon receipt they're aware of that it's not just a series of numbers they're aware that there's a person attached to that number  is opposed to giving enough information in another itself to be able to person you didn't know the person you're out of the statute as a knowing requirement and we allege that they knew that they were giving this information to combat so they could do this so that in that could then sell hyper tight targeted advertising through its application ever ties into a particular person is considerably more valuable than advertising to someone broad demographic information and the concept of personally identifiable information that we're proposing has already been found by this particular court important in that case this court interpreted personally  information is information that could be potentially used to link in that case a d n a profile basically a series of numbers it was a specimen number on the do you know a profile with an actual person and they concluded in that instance that that's a person identifiable device identifiers social security numbers phone numbers everything but name and address are all out and i think importantly that conception that we're pushing follows from the common law for defamation under defamation information identifies a person but never said the end of that disclosure knows who it's referring to this test has been faithfully applied in courts for over one hundred years and in the defamation context you didn't need to get a name it was sufficient to be defamation if at the end the recipient of the information knew who you were talking about it here when that made the disclosure they'll be the recipients of that information unquestionably knew who they were talking about and that should have been dealt at least because subscriber i think covered this particular instance if your honor looks at the legislative history when they're talking about who's covered they used the term user almost interchangeably with terms of scriver fact wasn't listed on the thing as the primary account holder he was actually listed on the account at the video store as other user so i think that shows the intent to cover people like that there are no further questions subscriber that is judge bork's name was known to the video store he wasn't anonymous ranter of videos they didn't know judge bork as a renter four hundred twelve they knew him because he had a subscriber relationship with the store he gave his name to the store and so they could disclose one of the ironic things about this case is we're accused of disclosing personally identifiable information about a subscriber in their words that we don't know who he is so you're saying then that if they what if they had just and showed don't work home address showed his work at us they could release that may be no lie aleutian it was and i think there's two parts to it one is whether he's a subscriber in that case judge bork was a customer of the story eight months once a week they could least his addresses are user at the following address as if you need all the following videos on the following dates and you'd say that's no violation of  i wouldn't say that i would say the opinions on whether the x rays they disclose identified a person because that's what the definition of what i just said that's all they did was they just listed the twenty seven videos went to sixteen state street and that's where he lives well if that address was one international place that wouldn't identify a person there are ten or thousand people who work at one international place so that wouldn't violate the statute to violate the statute you have to identify a person suppose it has a residential and every day why isn't that the equivalent of disclosing someone's address because first of all the person is not a subscriber well that's why i want to keep taking you back to that you want to that's or so that's that's a circular assuming a house that is a g p s the information that they may be getting if you know a far wider radius but well actually on many occasions they would actually tell you which part of the house but the thing i keep fighting you on your own and i apologize for doing it is you two part inquiry judge sarah look at this in the eleventh circuit look at the same way first are they covered by the statute do they have the relationship that allows them to be deemed a subscriber you had but the information that's disclosed about them personally identifiable and in your example judge bork would have had that relationship he would have gotten a video every day he would have given his name let's keep it to moving pieces monotone do you agree with me or is there any reason why we would conclude it's not a person why not because it does not identify a specific person as the statute requires that identifies of ok so you would then say back to i thought we agreed that if the video store disclosed where they were delivering the videos every day to sixteen greenstreet whatever you would say that's not a person to find information no on the home address i said it could be why isn't the g p s location when it shows us the address we have you need every day i mean if if if i'm looking at something and it shows us news has been viewed seventy eight days in a row at sixteen green street i think i've got a pretty good basis for guessing that someone at sixteen green transmission went to adobe that simply said one courthouse way you would say that's not a person identifying information but i'm asking about the transmission went to adobe that says seventy five days in a row who's looked at the  location would need to sixteen green street why isn't that person identifying information because on its face to the person who's disclosing the information they do not know how to identify a person based on it is a clue maybe a pull the name out of their database or at least the high probability that i think that's not correct i don't think there's any allegation that adobe used anything other than the android id for them to buy any of the subscribers on that point there is something i'd like to raise which for word these were dismissed as stuck to live and not supporting any conclusion that adobe could do anything with the android i d e s p n i can berger case that is there's no allegation here and i would focus you specifically on  none of the complaint i'm sorry twenty eight and twenty nine where they quote an adobe executive who says we do cross device matching to figure out if a user who viewed the content today is the same user  telling us is u s news and who's journalists and it's going to list could publish the next day in list of videos viewed over the last year and sixteen greenstreet which is the location if if we were to sustain this decision what i just said the law would not prohibit so if you want to affirm this decision casual viewers of web content people who go to the internet and view videos on usa today dot com are not covered by the v a they're not covered so now you're saying that said here's mr your source home address got anything but we don't have his home address we haven't enjoyed id i don't know here's his g p s location of his house that anything corresponds to that and if we sustain this ruling any information about the person we could publish the end right idea on the front page of the newspaper tomorrow along with all this i know about the end i thought he was on but that's what we disclosed i'm asking about the g p s location if your position is correct e really saying that u s news could announce to the world that here all the videos viewed at the following g p s location which corresponds to fifteen green street i think that's what you're telling us and congress  statute if it wants to address that situation setting aside the fact that i don't think that complaint really focuses on the use of g p s yes i think that we could disclose of non subscribers of casual viewers of web site that the information about the geo location of where the to know what could be done with this kind of information in relation to the object of the bork law and it seems to me that one way to look at your argument is to say given our concept of subscriber enormous amounts of personal information can be disclosed for exactly the same purpose and with the exactly the same fact  the information disclosed in the original bork's scenario which it was the object of the statute to stop i know the two questions are distinct but doesn't the ensor to the personal information question have a bearing on how broad or how narrowly we should can we should construe the subscriber question i don't think it should right it was stated back to four when i started you can method of consuming content was passed for a narrow purpose use the word purchaser renter or subscriber he concedes that if you do this all of what we're talking about on the internet if the p p a does not apply you sit in your computer and use your browser thought i believe the court with its congress had a chance in twenty thirteen when there were millions of videos on the internet when there were hundreds of thousands of apps to say no we meant the v p ph to cover every way somebody could consume content and congress didn't do that congress left the definitions exactly they were the way they were in one thousand and eight because the p p p is not designed to stop internet browsing and say as soon as you go to a website and you have video the information the ip address of your computer that must be cared for as if it's the most sensitive information possible it's not a statute to break the internet that was passed in one thousand and eight it was passed for a single purpose when you have a relationship with a video store or an online service like or netflix and you rent videos that site can't turn over your name in the videos that you watch but if you interpret that the opposite way and essentially break the internet because every website has video content and every website captures i so the parade of examples you offered me your honor these are not things that we can play was meant to cover and i would just i would just assert finally that you don't distinguish between happy as you watch on youtube and things you download in usa today is a newspaper and we have some video clips were not designed to be what the v p p s a was designed to cover in those push notifications give you news alerts they're not subscriptions to video services so i know that you're very concerned with i'd like to make two very quick points on reply the first is which my friend says the complaint is speculative why did this work and several allegations that state don't allege that they actually did anything with g p s or actually made an identity so