Monday, January 9, 2012

Say goodbye to the Video Privacy Protection Act

If someone posted a video of me having sex on the internet, which admittedly wouldn’t be very popular, I would sue them. Most likely I wouldn’t become very rich and very famous. Not like Paris Hilton or Kim Kardashian. Lawsuits for violations of privacy like this have made millions. Privacy lawsuits aren’t just limited to sex tapes, either. If you’re already famous, you can sue tabloids for following you around too much.

Unfortunately, if you aren’t already famous and haven’t made a sex tape, and you aren’t very pretty, privacy laws aren’t going to be helpful for much longer.

After Netflix successfully plies Congress to take the teeth out of the Video Privacy Protection Act (VPPA), there will be no longer be a sensible path for privacy laws to follow. The VPPA is the paradigm that we should follow to craft all future privacy laws. The VPPA creates a private right of action against corporations that violate privacy rules. This would allow individuals to take the initiative about privacy violations rather than waiting on overburdened and underfunded Attorney Generals to act on their behalf. Corporations might be worried about being overwhelmed by lawsuits. VPPA is an example of a privacy law that didn’t cause millions of lawsuits, rather it was successfully in place for 20 years and very few violations ever occurred.

Instead, we will be getting watered down privacy laws that are more like a license to violate privacy. Netflix is now one step closer to their dream of being able to share what movies you watch with other people. Last month, they were sent to mediation as the House passed an amendment to the VPPA.

The house has approved language that clarifies that the VPPA can support electronic signatures and allows Netflix and others to use either opt-in or opt-out for the sharing of information. The troubling part is that they allow for opt-out language. As a consumer, my privacy has been ensured for the last 23 years, and now it will suddenly be yanked away until I find out where they’ve buried the opt-out box on their website?

Specifically, the house bill would replace 18 USC 2710 (b)(2):

(B) to any person with the informed, written consent of the consumer given at the time the disclosure is sought;


(B) to any person with the informed written consent (including through an electronic means using the Internet) of the consumer given at one or both of the following times:

(i) The time the disclosure is sought.

(ii) In advance for a set period of time or until consent is withdrawn by such consumer.

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