Modernizing the Video Privacy Protection Act
44 Pages Posted: 22 Sep 2017
Date Written: September 21, 2017
Abstract
Enacted in 1988 after the Washington City Paper published Supreme Court nominee Robert Bork’s movie rental history, the Video Privacy Protection Act (“VPPA”) ensures personal privacy in the rental, purchase, or delivery of “video tapes or similar audio visual materials,” thereby protecting the right to privacy in one’s choice of movies and videos. When the VPPA was enacted, consumers obtained movies on VHS cassette tapes. Today, on-demand television and Internet streaming allow consumers to watch movies and videos on televisions, computers, and smart phones. Despite massive technological progress in the past thirty years, not much has changed with the VPPA. As a result, the statute stands caught between judicial interpretations that expand the statute to modern forms of video delivery and those that stand firm to the notion that, without revision, the VPPA must remain stuck in 1988.
This article explores the four major interpretative issues that have plagued the VPPA in the last few years, and resolves circuit splits on two of those issues with proposed revisions to the statute. First, this article proposes replacing the outdated VPPA definition of “personally identifiable information” with one that encompasses today’s most common digital identifiers, such as an IP address and Android ID, but only where the recipient of such information is reasonably likely to identify a particular consumer. To solidify the VPPA’s application to modern video formats, this article further proposes amending the statute to protect individuals who download and use smart phone apps to view movies and videos. Finally, this article proposes increasing the VPPA’s penalty for disclosures of video watch histories that, like the Bork disclosure, are likely to be made public, the scenario where privacy concerns are most heightened.
Keywords: privacy, video, movie
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