Congress enacted the Video Privacy Protection Act (VPPA or the Act) in 1988 to protect consumers by prohibiting video tape service providers from knowingly disclosing their personally identifiable information to any person, without first obtaining consent. The VPPA defines “consumer” as any renter, purchaser, or subscriber. However, the Act does not define the term “subscriber.” Over the past thirty years, there has been a rapid increase in the use of downloadable apps that allow individuals to watch videos and other online content for free on their mobile phones. Does the sole act of downloading a free app onto a mobile phone make an individual a protected “subscriber?” This question has challenged the scope of protection afforded by the VPPA to consumers and has created a circuit split between the United States Court of Appeals for the Eleventh Circuit and the United States Court of Appeals for the First Circuit.
Both circuits have struggled to define “subscriber” and have struggled in determining when an individual’s conduct rises to the level of becoming a protected “consumer.” This Note argues for the resolution of the circuit split through a two-pronged approach. The first prong requires amending the VPPA to include a broad and unambiguous definition of “subscriber,” which will adequately protect the privacy rights of individuals that download and use free apps. The second prong requires implementing a balancing test consisting of several different factors that the courts must weigh and consider. The test will allow courts to broaden the scope of the VPPA to protect the rights of individuals who rise to the level of protected “consumers,” despite their actions not falling squarely into one of the statutory requirements.