10.  To install the application on an Android device, users must visit the Google Play  Store, the online digital media platform operated by Google. Once downloaded and installed, and  upon opening the application for the first time, the USA Today App presents a screen that asks  the user’s permission for the App to push (i.e., display) notifications on their device. (See Figure  1 below, showing the USA Today App when first opened.) After choosing “Yes” or “No,” the  user is directed to the App’s main user interface. (See id.)  (Fig. 1.)   12.  As shown in Figure 2 below, the USA Today App is organized into categories  accessible through the application’s main user interface. (See Figure 1 above; see also Figure 2  below, showing the App’s list of news categories.) Users may browse these sections to view  news and entertainment-related articles or view video clips. (See id.)  (Fig. 2.)   14.  Today’s average consumer uses more than one device to access the Internet to do  things like view digital content or make online purchases. This creates challenges for online  advertisers and data analytics companies. Namely, to gain a broad understanding of a given  consumer’s behavior across all of the devices and applications that an individual uses, these  companies have to find ways to “link” their digital personas. The primary solution has been to  use unique identifiers to connect the dots.    15.  Unique identifiers are used to precisely identify a person and to link their  activities across devices and applications. Data analytics companies—like Adobe—create user  profiles comprised of behavioral data and unique identifiers, often supplied by hardware  manufacturers.    16.  An example of a hardware manufacturer supplied unique identifier in the  consumer electronics context is a device’s Android ID. That’s because Android IDs are  “persistent unique identifiers,” meaning they are unique to a specific device and user.   17.  Indeed, even “[w]hen a device has multiple users [] each user appears as a  completely separate device, so the ANDROID_ID value is unique to each user.”5 These  properties make the Android ID a particularly attractive identifier for analytics companies,  because it can be precisely linked to an individual person, and the person cannot avoid being  tracked while using the device.   19.  USA Today partnered with Adobe because its analytics services provide insights  into the behaviors and demographics for the App’s user base. This helps USA Today to, among  other things, accurately target advertisements to its users.   20.  The reason Adobe (or any other analytics company) is capable of developing a  complete understanding of an individual’s digital activities is because it collects an enormous  amount of detailed information about a given consumer’s online behavior (as well as unique  identifiers associated with a user’s devices) from a variety of sources.   21.  For instance, an Android app that transmits its host device’s Android ID along  with a record of user activity provides analytics companies with an intimate look at the different  types of materials consumed by the individual. This data may reveal, or help create inferences  about, the person’s political or religious affiliations, sexuality, or general reading and viewing  preferences.    22.  Once Adobe links a device’s Android ID with its owner, it can then connect new  information retrieved from Android apps—including the USA Today App—with existing data in  the person’s profile (which was previously collected by Adobe from other sources).    24.  Later in the interview, Mr. Comstock discusses the collection of data from mobile  and other devices:   Q: Can you go into that? What are the different elements of cross-device your  clients are talking about?  Mr. Comstock: For us, it’s browser-to-browser or browser-to-app.  Understanding those relationships. Work vs. home computers, understanding the  behavior across those different devices. Mobile is the current trend but as we add  Internet-connected TVs, Roku devices and with Comcast and Freewheel, the  digital world is all over the place and it needs to extend beyond mobile, and have  a platform able to bring in and capture devices in general.    25.  Likewise, the Privacy Policy for Adobe’s analytics services states that: “[s]ome  companies using Adobe services may send us information that allows them to identify you  personally. Some companies may also buy additional information about you and then add that  additional information to the information collected by Adobe’s products on their websites. This  additional information may include things like email addresses, account information, or  Facebook profile information, including photos and usernames.”7   27.  Figure 3 details the depth of information captured by Adobe’s data analytics  services. Of particular note are the “source[s]” of consumer data in the far right column. The  graphic’s references to these sources—including “Web Analytics” and “Mobile”—implicate  mobile software applications (like the USA Today App) that collect consumer data. These  sources help Adobe generate profiles on individuals containing the wealth of information shown  in the middle column of Figure 3. That information includes things like a person’s address, age,  phone number, email, purchase history, behavioral activity, and income.   29.  Accordingly, in this context Adobe uses data obtained from the USA Today App,  among other sources, to personally identify users and associate their video viewing selections  with a personalized profile in its databases.  B.  The President and Congress are responding to growing privacy concerns  over the collection and misuse of personal information in the digital  marketplace.    30.  Concerns over the privacy risks associated with the collection and transmission of  PII from digital devices to third parties is no longer just academic musing. In a recently issued  sixty-two page policy memo, President Obama squarely addressed the issue, stating that there’s a  growing problem with consumers’ privacy “in the age of the Internet, the World Wide Web and  smartphones.”9 While the President’s memo provided a “blueprint” for protecting consumers’  privacy, he called on Congress to take the lead and pass legislation to curb behavior related to the  corporate exploitation of user data.    32.  In establishing this Subcommittee, Senator and Subcommittee Chair Al Franken  noted that “[t]he boom of new technologies over the last several years has made it easier to keep  in touch with family, organize a community and start a business . . . It has also put an  unprecedented amount of personal information into the hands of large companies that are  unknown and unaccountable to the American people.”11    33.  Members of other subcommittees have made similar remarks. In a meeting of the  Subcommittee on Consumer Protection, Product Safety, and Insurance, Senator John Rockefeller  noted that, “third parties use [consumer data] to target advertising on individuals . . . It is very  good business, but it is very cynical. It is an abuse of that power, passing on people’s profiles.”12   34.  In response to the increased scrutiny on consumers’ privacy concerns, companies  are also starting to change their data collection and usage practices. For instance, in the release of  Apple’s most recent mobile device operating system, iOS 7, Apple discontinued the ability to  transmit certain personally identifiable information to third parties for tracking purposes.13   44.  Numerosity: The exact number of members of the Class is unknown and is not  available to Plaintiff at this time, but individual joinder in this case is impracticable. The Class  likely consists of thousands of individuals. Class members can be easily identified through  Defendant’s records.   45.  Commonality and Predominance: There are many questions of law and fact  common to the claims of Plaintiff and the other members of the Class, and those questions  predominate over any questions that may affect individual members of the Class. Common  questions for the Class include but are not limited to the following:  a)  Whether Defendant, through the USA Today App, unlawfully disclosed  and continues to unlawfully disclose its users’ PII, including their video  viewing records, in violation of the VPPA;   b)  Whether Defendant’s disclosures were committed knowingly;   c)  Whether Defendant disclosed Plaintiff’s and the Class members’ PII  without consent; and  d)  Whether Defendant violated Plaintiff’s and the Class members’ rights to  privacy.   47.  Adequate Representation: Plaintiff will fairly and adequately represent and  protect the interests of the Class, and has retained counsel competent and experienced in  complex litigation and class actions. Plaintiff has no interests antagonistic to those of the Class,  and Defendant has no defenses unique to Plaintiff. Plaintiff and his counsel are committed to  vigorously prosecuting this action on behalf of the members of the Class, and have the financial  resources to do so. Neither Plaintiff nor his counsel has any interest adverse to those of the other  members of the Class.   48.  Policies Generally Applicable to the Class: This case is appropriate for  certification because Defendant has acted or refused to act on grounds generally applicable to the  Class as a whole, thereby requiring the Court’s imposition of uniform relief to ensure compatible  standards of conduct toward the members of the Class, and making final injunctive relief  appropriate with respect to the Class as a whole. The factual and legal bases of Defendant’s  liability to Plaintiff and to the other members of the Class are the same, resulting in injury to the  Plaintiff and to all of the other members of the Class. Plaintiff and the members of the Class have  suffered harm and damages as a result of Defendant’s unlawful and wrongful conduct.    50.  Plaintiff reserves the right to revise the foregoing “Class Allegations” and “Class  Definition” based on facts learned through additional investigation and in discovery.  51.  Plaintiff incorporates the foregoing allegations as if fully set forth herein.   52.  Defendant is a “video tape service provider as defined by the VPPA because it  “engage[s] in the business, in or affecting interstate or foreign commerce, of rental, sale, or  delivery or prerecorded video cassette tapes or similar audio visual materials,” 18 U.S.C. §  2710(a)(4), inasmuch as it provides video (i.e., “similar audio visual materials” under the  VPPA’s definition) to consumers via its USA Today App.    53.  Plaintiff is a “consumer” as defined by the VPPA because he downloaded,  installed, and watched videos using the USA Today App. 18 U.S.C. § 2710(a)(1). Under the  VPPA, this means that he was a “subscriber” of “goods or services from a video tape service  provider.” 18 U.S.C. § 2710(a)(1).   55.  The USA Today App’s transmissions of Plaintiff’s PII to Adobe constitute  “knowing[] disclosures” of Plaintiff’s “personally identifiable information” to a person as  proscribed by the VPPA. 18 U.S.C. § 2710(a)(1).    56.  Under the VPPA, the term “personally identifiable information” “includes  information which identifies a person as having requested or obtained specific video materials or  services from a video tape service provider.” 18 U.S.C. § 2710(a)(3). The definition’s usage of  the word “includes” means that a more expansive reading of the term was expressly  contemplated.    57.  As detailed more fully in Section II above, the information disclosed by USA  Today—the combination of his device’s unique Android ID and the records of the videos that he  viewed—constitutes “personally identifiable information” in this context because it allows  Adobe to identify users such as Yershov, and to attribute their video viewing records to their  Adobe-created profiles.   58.  Consistent with this view, the National Institute of Standards and Technology  (NIST) defines “personally identifiable information” as “any information that can be used to  distinguish or trace an individual’s identity.”16 As described in detail in Section II above and  throughout this Complaint, Plaintiff’s Android ID and video viewing records can be used by  Adobe to distinguish or trace his identity.     60.  At no time did Plaintiff ever provide USA Today with any form of consent— either written other otherwise—to disclose his PII to third parties.    61.  Nor were USA Today’s disclosures made in the “ordinary course of business” as  the term is defined by the VPPA. In particular, the USA Today App’s disclosures to Adobe (an  analytics company) were not necessary for “debt collection activities, order fulfillment, request  processing, [or] the transfer of ownership.” 18 U.S.C. § 2710(a)(2).   62.  As a result of Defendant’s unlawful disclosures, Plaintiff and the Class have had  their statutorily defined rights to privacy violated. Plaintiff seeks an injunction to prohibit USA  Today from releasing his and the Class’s PII in the future, as well as the maximum statutory and  punitive damages available under the VPPA. 18 U.S.C. § 2710(c).  9.  The USA Today App is a mobile software application that allows consumers to  access news and entertainment media content on their Android mobile devices.2   I.  USA Today Programmed its App to Transmit Users’ PII, Including Video Viewing  Activity, to a Third Party Analytics Company Without Their Consent.    Violation of the Video Privacy Protection Act  (18 U.S.C. § 2710)  (On behalf of Plaintiff and the Class)  