Antitrust Law Daily Wrap Up, PRIVACY NEWS: Video Privacy Protection Act Amendments Await President’s Signature, (Dec 28, 2012)

By Tobias J. Gillett, J.D., LLM.

Both houses of Congress have passed a bill that would amend the Video Privacy Protection Act of 1988 (VPPA) to explicitly permit video service providers to share the video rental histories of their consumers with the consumers’ permission.

The VPPA, 18 U.S.C. § 2710, limits the ability of video rental companies to disclose the rental history of their consumers. The VPPA currently prevents video services from deliberately disclosing their consumers’ rental histories to anyone other than the consumer, a law enforcement agency, or a court without the “informed, written consent of the consumer given at the time the disclosure is sought” or “if the disclosure is incident to the ordinary course of business of the video tape service provider.” The VPPA provides for a private cause of action against violators of the Act.

The amendments would permit video service providers to obtain the informed consent of consumers to disclosure of their rental histories either on a case-by-case basis or on an ongoing basis for a period of up to two years, at the discretion of the consumer, as long as the providers also grant consumers the opportunity to withdraw consent. The bill specifically allows video services to obtain the consent of consumers through the Internet.

Online video service providers had campaigned for passage of the amendments, arguing that they would permit the providers to offer integration of their services with social media applications. In 2011, the video rental company Netflix had issued a statement announcing that it would not offer a service that connected customers’ Netflix accounts with their Facebook accounts in the United States due to confusion over the company’s ability to offer the service and remain in compliance with the VPPA. Both Netflix and the online video company Hulu have been the subject of litigation alleging violations of the VPPA, with Netflix recently settling a case for $9 million.

The author of the original VPPA, Sen. Patrick Leahy (D-Vt.), applauded passage of the amendments.

“The bill we enact today takes several important steps to accommodate new technologies, like video streaming and social networking, while also helping to protect digital privacy rights in cyberspace,” Sen. Leahy said in a statement.

The bill’s principal sponsor in the House, Rep. Bob Goodlatte (R-Va.), also expressed his enthusiasm for the bill’s passage.

“Protecting private information is critically important in today’s online world,” Goodlatte said in a press release. “This bipartisan bill is truly pro-consumer and places the decision of whether or not to share video rentals with one's friends squarely in the hands of the consumer.”

However, privacy protection organizations questioned the benefit to consumers of social media applications like Netflix’s service when consumers can already choose to disclose individual videos they have watched on their own. They also expressed concern about Congress’s willingness to pass the amendments without also passing more comprehensive privacy legislation to which the amendments had previously been attached, including a revision to the Electronic Communications Privacy Act that would prevent law enforcement agencies from obtaining access to electronic communications without a search warrant.

“Changes to electronic privacy cannot happen piecemeal,” said Chris Calabrese, legislative counsel for the American Civil Liberties Union, in a press release. “If we are to achieve true reform–which means getting full protection for Americans’ in-boxes and private communication–we cannot give priority to special interests. If they want updates to our privacy laws, they should have to wait in line with the American people.”

News: Privacy