December 24, 2012
Amendments to the video privacy law inspired by Robert Bork’s nomination proceedings are ready for the president’s signature.
Long before anyone clicked a “like” or “share” button, Senator Patrick Leahy noted,
It really isn’t anybody’s business what books or what videos somebody gets. It doesn’t make any difference if somebody is up for confirmation as a Supreme Court Justice or they are running the local grocery store. It is not your business. It is not my business. It is not anybody else’s business, whether they want to watch Disney or they want to watch something of an entirely different nature. It really is not our business.
It’s easy to understand where Senator Leahy is coming from here. It’s just that, in 1988, did anyone anticipate the number of users who might wish to volunteer this information?
Senator Leahy was speaking in support of what became the Video Privacy Protection Act (VPPA) PL 100-618 (codified at 18 USCA 2710). Congress passed the VPPA shortly after a DC paper published Robert Bork’s video rental history during his Supreme Court nomination. The Act now prohibits a “video tape service provider” from disclosing this kind of “personally identifiable information.”
Decades later, video streaming services like Netflix fear that enabling social sharing tools on their sites might subject them to civil and criminal liability under the VPPA. See for example, Netflix General Counsel David Hyman speaking before Congress from January of this year:
Unfortunately, we have elected not to offer our Facebook application in the United States because of ambiguities in the Video Privacy Protection Act. Under this law, it is unclear whether consumers can give ongoing consent to allow Netflix to share the movies and TV shows they’ve instantly watched through our service.
2012 WLNR 2123872.
In fact, the Northern District of California recently ruled that the application of the VPPA to online streaming is consistent with a “plain reading” of the statute. See In re Hulu Privacy Litigation, 2012 WL 3282960. That hardly settles the issue. For an alternative view, see Ian Ballon’s comments from his treatise at ECOMMINTLAW 26.13. The Senate nevertheless recently amended the VPPA and sent the bill to the president for his signature.
Nevertheless, HR 6671 would permit consumers to provide on-going consent over the Internet to the sharing of their viewing history. You may access a Westlaw version of the text and related legislative history here: 2011 CONG US HR 6671.
ADDITIONAL RESEARCH REFERENCES
For references to Bork in the legislative history of the Video Privacy Protection Act of 1988, locate for BORK at PL 100-618 LH.
Sentator Leahy’s comments above can be found at the Video and Library Privacy Protection Act of 1988, Joint Hearing Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm. on the Judiciary and the Subcomm. on Technology and the Law of the Senate Comm. on the Judiciary (August 3, 1988)
For transcripts of the Robert Bork’s confirmation hearings, try the following search on Westlaw Classic in the SCT-CONFIRM database:
BORK & da(1987)
Ian Ballon’s Treatise, E-Commerce and Internet Law
Ian Ballon’s comments reference above were as follows:
This analysis, however, ignores that the relevant term is not materials but “similar … materials” which should be construed in the context of the term that preceded it—video cassette tapes. As noted above, the example provided in the legislative history is “similar audio visual materials, such as laser discs, open-reel movies, and CDI technologies.”[FN662] The court’s conclusion that this reference to tangible media evidences a broader “intent to cover new technologies” seems to be a stretch.
Ian C. Ballon, E-Commerce and Internet Law, ECOMMINTLAW 26.13
Congressional Testimony can be found on Westlaw and WesltawNext at Congressional Testimony (CONGTMY) and U.S. Political Transcripts (USPOLTRANS). For example, in U.S. Poltical Transcripts, try simply:
Senator Al Franken’s statements are interesting. He cites several examples for why protecting a viewing history might be important including this:
This came up in one famous case where a local police department thought that the 1979 movie, the “Tin Drum” was obscene. Now mind you, this was a movie about what happened in Nazi Germany just before World War II. It won an Oscar for Best Foreign Film. But the police department went out and seized a list of everyone who had the movie and then drove around confiscating every copy. And in that case the ACLU chapter in the Ranking Member’s state of Oklahoma used the Video Privacy Protection Act to stop that.Sen. Al Franken Holds a Hearing on Protecting Video Viewer Privacy, Panel 1, 2012 WL 309108