Academic journal article Harvard Law Review

The Video Privacy Protection Act as a Model Intellectual Privacy Statute

Academic journal article Harvard Law Review

The Video Privacy Protection Act as a Model Intellectual Privacy Statute

Article excerpt

Judge Robert Bork had offered his assessment of privacy's constitutional status in scholarly tomes and congressional testimony, (1) but in the fall of 1987, the only theory of privacy that mattered was Michael Dolan's. In The Bork Tapes, a self-consciously intrusive survey of Judge Bork's video rental history published in the Washington City Paper, reporter Michael Dolan offered the following insight: "The only way to figure out what someone is like is to examine what that someone likes--take a hard look at the tools of leisure he uses to chip away life's rough edges." (2) The article attempted to reconstruct the interior life of a U.S. Supreme Court nominee who would go on to criticize the constitutional right to privacy as "a loose canon in the law," (3) confronting Judge Bork with his own vulnerability to privacy harms. The list of 146 videotapes Judge Bork had rented over the course of two years, leaked by a store clerk, revealed nothing particularly salacious. Judge Bork favored Alfred Hitchcock films, spy thrillers, and British costume dramas; someone in the Bork household had an affinity for John Hughes movies. The list's disclosure hardly intruded upon the sphere of intimate and domestic life protected from government intrusion by Griswold v. Connecticut (4) and its progeny. (5) Yet, against the backdrop of "[o]ne of the fiercest battles ever waged over a Supreme Court nominee," (6) the publication of The Bork Tapes drew bipartisan ire and generated consensus (7) on the importance of intellectual privacy. (8)

The following year, Congress enacted the Video Privacy Protection Act (9) (VPPA), which restricted the disclosure of video records without the watcher's consent. (10) The Act followed a spate of privacy-protective statutes enacted in the 1970s and 1980s: the Privacy Act of 1974, the Privacy Protection Act of 1980, the Cable Communications Policy Act of 1984, and the Electronic Communications Privacy Act of 1986. (11) Policymakers had become increasingly concerned about "minimizing intrusiveness, maximizing fairness, and creating legitimate, enforceable expectations of confidentiality," (12) especially after repeated judicial failures to secure personal privacy rights in spheres less intimate than reproduction. (13) Congress made its goals manifestly clear in supplementing constitutional privacy with statutory protection. First, the VPPA evinced a desire to embody purpose-specification, (14) use-limitation, and individual-participation principles already familiar from the first iteration of the Organisation for Economic Cooperation and Development (OECD) Privacy Guidelines, a set of internationally agreed-upon privacy principles developed in the 1980s. (15) Second, the Act recognized that a video watcher's privacy--like a reader's or a writer's privacy--implicates First Amendment values that Congress ought to safeguard. (16)

The landscape of intellectual engagement has shifted significantly since 1988. A newspaper reporter who attempted to replicate Dolan's experiment today would have trouble finding a brick-and-mortar video rental store--and, once there, would scarcely find a satisfactory set of subscribers to snoop on. A Supreme Court nominee wanting to check out something more scandalous than Pretty in Pink would probably opt for an online transaction, availing himself or herself of an oft-overlooked privacy benefit of a digitized intellectual environment: privacy from the store clerk. (17) Our watching habits, like our reading habits, have moved online. The relevant players in video privacy are no longer Blockbuster and Hollywood Video, but rather Amazon, Netflix, and Hulu. (18)

Since 1988, doctrine has changed as well. Lujan v. Defenders of Wildlife (19) redefined the meaning of standing to sue, placing the emphasis on injury in fact. (20) In the lead-up to Spokeo, Inc. v. Robins, (21) information privacy scholars expressed their concern that the Supreme Court's ruling could undermine citizens' ability to seek relief under privacy-protective statutes like the VPPA. …

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