Senate Vets Video Rental Info Sharing Bill

VPPA Amendment Allows for Blanket Permisson From Users, Instead of Current Per-Title Permission Requirement

By John Eggerton -- Multichannel News, 1/31/2012 3:30:00 PM

A bill that would allow Netflix to secure a blanket agreement from users to share their choice of video rentals with third parties looks like it will get more scrutiny in the Senate than it did in the House.

The bill, HR 2571, which amends the Video Privacy Protection Act (VPPA) to allow for blanket permission from users, instead of the current per-title permission requirement, got a hearing in the Senate Privacy Subcommittee Tuesday (a recent subcommittee addition to the Judiciary committee in the wake of increased focus on online privacy issues).

The bill passed in the Republican-controlled House Dec. 6 on a vote of 303-116 and without a hearing. It was referred to the Senate Judiciary Committee. The bill amends VPPA, which dates to 1988 and was passed in the wake of the release of video rental records of then-Supreme Court nominee Robert Bork. 

The amendment that passed Dec. 6 is only a few lines long and "clarifies" that "a video tape service provider [which includes delivering that ‘tape' digitally] may obtain a consumer's informed, written consent on an ongoing basis and that consent may be obtained through the Internet."

At issue is whether the change to an ongoing consent that would have to be rescinded is sufficiently protective of that information, essentially boiling down to the opt-in versus opt-out debate of online privacy protection. 

Netflix wants users to be able to provide a blanket agreement to share movie choices, which includes on Facebook, just as they set music or reading choices for default sharing with their friends. Critics of the bill point out it does not limit with whom the information can be shared, that friends today might be cyberbullies tomorrow, and that there is no provision for how easy it would be to agree to share vs. how tough a company might make it to unshare.

At the hearing, Sen. Al Franken (D-Minn.), chair of the committee, clearly had concerns about those issues and said he thought the House had rushed through the amendment, perhaps without all those who voted for it understanding the ramifications.

Franken said he thought the VPPA needed updating, but said he would like to see it applied specifically to online streaming. Netflix was not interested in transposing VPAA to online given its per-view limitation on sharing info. 

Franken said that while he believed VPAA already included online streaming given its wording talks about similar audiovisual distribution of tapes (it also obviously did not mention DVD's back in 1988), he is not confident a judge somewhere might not disagree. 

Sen. Tom Coburn (R-Okla.) said he thought VPAA also needed to be updated, but seemed more in line with Netflix, making the point that Facebook users could share ongoing music or book preferences or TV show preferences on Hulu with an initial blanket approval. But he also said Franken had made some good points and ultimately seemed to be of two minds on the issue. He asked Netflix General Counsel and hearing witness David Hyman why it would not be relatively easy to let renters choose at the time of viewing whether to share or not, since they would have to push the play button, as it were, and why it would be any harder to have a "play and share" button option. Hyman said that while they did have such an option for users outside the U.S., where there is no limitation on a blanket sharing approval, that function was not available on all devices, including some legacy equipment, and added that they did that voluntarily and that Netflix did not think the Congress should be deciding whether or not users could provide blanket consent if they chose to. He said he agreed that opting out of that consent should be as easy as making the initial election, but Franken pointed out the amendment did not ensure that and that other, not-as-good actors, could make it tough to deselect.

Patrick Leahy (D-Vt.), chair of the Judiciary Committee, who helped craft the original VPPA back in 1988, was clearly troubled by the amendment. 

Leahy said that protecting privacy is getting increasingly more difficult as businesses collect and store more info. He said technology is indeed outpacing privacy laws, which is why he is pushing for personal data privacy and security legislation. 

He said that while companies may want to make it simpler to track users across the board for their own benefit, it may not be better for consumers. He added that it might also be simpler for industry without antitrust or consumer protection laws. He said when corporate interests provide a check-off for some fun new app, they may not be giving consumers the whole story. That one-time check-off of consent to mine and sell info has the effect of a "one-time surrender," he said.

Standing up for the amendment was Christopher Wolf, co-chair of the Future of Privacy Forum. He said that VPPA's requirement of ongoing permission for each viewing can frustrate a viewers' choice to authorize ongoing disclosure in a social media world undreamt of in 1988. "Facebook users commonly utilize a one-time authorization - a durable choice option - to share a wide range of information with their friends," he told the committee. "But their ability to use such an authorization to share video-watching experiences arguably is thwarted by the restrictive, outdated language of the statute requiring consent of the consumer given at the time the disclosure is sought."

Wolf said that it is crucial to reform laws from an "old framework" that does not fit today's digital world. "The key to protecting privacy is not to be paternalistic and deny people the right to share information as they wish or to assume they don't know what they are doing online," he said.