Video Privacy Protection Act
|Long title||An act to amend title 18, United States Code, to preserve personal privacy with respect to the rental, purchase, or delivery of video tapes or similar audio visual materials|
|Enacted by||the 100th United States Congress|
|Effective||November 5, 1988|
|Public law||Pub.L. 100–618|
|Statutes at Large||102 Stat. 3195|
|Titles amended||Title 18 of the United States Code|
|U.S.C. sections created||18 U.S.C. § 2710|
The Video Privacy Protection Act (VPPA) was a bill passed by the United States Congress in 1988 as Pub.L. 100–618 and signed into law by President Ronald Reagan. It was created to prevent what it refers to as "wrongful disclosure of video tape rental or sale records [or similar audio visual materials, to cover items such as video games and the future DVD format]." Congress passed the VPPA after Robert Bork's video rental history was published during his Supreme Court nomination. It makes any "video tape service provider" that discloses rental information outside the ordinary course of business liable for up to $2500 in actual damages.
Origin of Computer-based VPPA Litigation
In 2008, Attorney Joseph H. Malley,(Law Offices of Joseph H. Malley, PC, Dallas Texas), filed a Federal Class Action against Facebook, and thirty-three companies, including Blockbuster, Zappos, and Overstock, due to privacy violations caused by the Facebook Beacon program. This program resulted in users' private information, obtained from third-party affiliate marketing websites, being posted on Facebook without consent. This act was referenced in the Lane v. Facebook, Inc. class action. Based on this act it is generalized to other forms of rental records such as DVDs and Video games etc.
With the emergence of new-age computing technology and devices in the early 2000s came websites, 3rd party advertising and tracking firms began using mechanisms that violated a user's privacy. While computer technology was progressing rapidly, federal and state laws had failed to be proactive, a risk to society of ungoverned technology. As such, litigation for violations was relatively non-existent. A new method to litigate Federal privacy cases was needed to protect the hundreds of millions of people violated by unauthorized tracking user's activities online.This was a formidable task since no law firms had litigated cases involving the computer technology inherent within the exchange of user data between third-party affiliated entities, thus there was no case precedent, no "blueprint" to follow. Earlier cases, such as the double-click "cookie" case in 2001, had relied on using a wiretap statute, the Electronic Communication Privacy Act ("ECPA"). While a plausible allegation, it was a weak allegation since the website user had granted such permissible use within the website's term of service ("TOS").
Attorney Malley, who had developed a litigation strategy in the early 2000s involving another federal privacy law, the Driver Privacy Protection Act ("DPPA"), a law related to the unauthorized access to DMV records and permitted statutory damages for privacy violations, IE., $2500.00 damage award "per person-per violation, (per company)", successfully filing numerous federal class actions against 300–400+ companies, sought a similar strategy, but needed to develop a new theory of liability for added assurance to survive a motion to dismiss. The problem, no case law involving this new-age type of technology. Substantial research was thus required, eventually revealing an "archaic" statute created in 1988: Video Privacy Protection Act ("VPPA"). Arguably unrelated to present technology, VPPA concerned obtaining information from a physical location and involved VHS and Betamax recordings. As such, lawsuits involving online entities that used audio-video would need to plead comparisons between the "old-new" technologies for advertising.
The online advertising industry, in association with analytic companies, had begun using video ads to conduct its ubiquitous tracking, consumer's attention shown to be drawn to such as opposed to written content, In later years, these tracking methods would expand to photos and audio, IE., In 2008, cell phones were re-designed to include a new method of tracking, the use of social apps to collect photos, a process which now permitted a one step "click" process to uploading a photo as opposed to the previous six steps, thus consumers were now more inclined to upload photos in mass. This allowed content to be provided for free and which formed the basis for the tracking, IE., EXIF data. Such acts were captured when Attorney Malley used software applications to log HTTP/HTTPS traffic between a computer's web browser and the Internet, analytic tests using two computers interfaced, producing indisputable evidence of such activities: moreover, detailed reports of any and all parties involved in such nefarious activities, IE., "tracking the trackers". In the continuing research of the Industry's business practises in order to determine its monetization interests, such revealed the incorporation of complex graphics within online ads, and the exchange of data derived from video ads not confined to an internal network, used via a TCP/IP protocol. This unauthorized activity would become the core allegation.
Extensive research and case analysis of Federal and State laws, regulations, and Court Opinions, yielded limited assistance. An adaptation of the law was needed to litigate this new computer technology involving the unauthorized access to online consumer's data. Attorney Malley seized on an archaic law written concerning the technology of the 1980s involving video cassettes, VHS, and Betamax, the Video Privacy Protection Act ("VPPA"), 18 U.S. Code § 2710 - Wrongful disclosure of video tape rental or sale records, (1988), envisioning that the websites, and any affiliated third-parties, which used the audio and/or video within its marketing ads were "video-providers"; moreover, this content, ads and online games, merely a video; moreover, the essential functionality of the illegal transfer, a "wrongful disclosure", (core elements needed to prove-up a VPPA violation). The use of the VPPA law in regard to this new-age computer technology would set precedent, and become the new "blueprint" used in Federal privacy litigation.
The lawsuit alleged the release of the records was a violation of the Video Privacy Protection Act.
In December 2009, once again, Attorney Joseph H. Malley, (Law Offices of Joseph H. Malley, PC., Dallas Texas), representing an anonymous plaintiff, filed a lawsuit against the online DVD rental company Netflix over its release of data sets for the Netflix Prize, alleging that the company's release of the information constituted a violation of the VPPA.
Netflix cited the act in 2011 following the announcement of its global integration with Facebook. The company noted that the VPPA was the sole reason why the new feature was not immediately available in the United States, and it encouraged its customers to contact their representatives in support of legislation that would clarify the language of the law.
In 2012, Netflix changed its privacy rules so that it no longer retains records for people who have left the site. This change was due directly to a lawsuit indicating violation of the act.
In January 2013, President Obama signed into law H.R. 6671 which amended the Video Privacy Protection Act to allow video rental companies to share rental information on social networking sites after obtaining customer permission. Netflix had lobbied for the change. Attorney Joseph H. Malley was contacted by the Chief Counsel, Democrats|Subcommittee on IP at U.S. House of Representatives to provide assistance related to 2012 VPPA Amendment proposal.
A San Francisco federal trial court found the VPPA's subscriber protections apply to users with Hulu accounts, a class action also involving Attorney Joseph H. Malley. In 2015, a federal appeals court in Atlanta found that those protections do not reach the users of a free Android app, even when the app assigns each user a unique identification number and shares user behavior with a third-party data analytics company.
- Vijayan, Jaikumar (2008-04-18), "Blockbuster sued over Facebook Beacon information sharing Archived January 16, 2009, at the Wayback Machine". Computerworld.
- Singel, Ryan. "Netflix Spilled Your Brokeback Mountain Secret, Lawsuit Claims", Wired Magazine
- "Help Us Bring Facebook Sharing to Netflix USA". Netflix Blog. Retrieved 2011-09-22.
- "Class-action lawsuit settlement forces Netflix privacy changes". Ars Technica.
- Obama signs Netflix-backed amendment to video privacy law, Steven Musil, Cnet, January 10, 2013, accessed June 18, 2015
- Recent Cases: Eleventh Circuit Limits the Scope of "Subscriber" for VPPA Protections, 129 Harv. L. Rev. 2011 (2016).