Academic journal article American University Business Law Review

The Price of Free Mobile Apps under the Video Privacy Protection Act

Academic journal article American University Business Law Review

The Price of Free Mobile Apps under the Video Privacy Protection Act

Article excerpt


The advent of the smartphone and its mobile applications ("apps") brought technology closer to the most private areas of one's life: users can manage their financial affairs, medical conditions, and dating prospects all in one place. Beyond convenience and efficiency, the smartphone created a new form of entertainment by allowing its users to watch videos clips, television episodes, and movies in the palms of their hands. Since 68% of Americans own smartphones, and 94.5% of all mobile apps downloaded are predicted to be free, consumer privacy concerns attached to these free apps are highly relevant.1

In Riley v. California,2 Chief Justice John Roberts emphasized the privacy of a smartphone by describing it as "a digital record of nearly every aspect of [a person's] life from the mundane to the intimate."3 Subsequently, the U.S. Supreme Court significantly increased the protection of mobile phones by requiring police to obtain a warrant before viewing information stored on an arrestee's cellphone.4 The extent of permissible government intrusion into personal information is always a hotly contested issue, but businesses in the mobile community deserve more scrutiny because their actions are equally as intrusive and more evasive towards consumers' personal information.

One legislative protection is the Video Privacy Protection Act ("VPPA"), which prohibits a videotape service provider from knowingly disclosing personally identifiable information ("РП") of its consumers to third parties without consent.5 Some courts view the VPPA as an antiquated law from the "videotape-era" whereas other courts broadly interpret the VPPA as including video platforms, such as online streaming websites and mobile apps.6 As video technology becomes more advanced, the definitions of videotape service provider, consumer, and PII become more uncertain. In a society where privacy is rapidly eroding, the VPPA stands as one of the last remaining defenses in guarding our private viewing habits.7

This Comment argues that the VPPA does not adequately safeguard information linking a consumer's identity to his or her private viewing history when app developers allow users to download mobile apps for free. This Comment discusses the statutory definitions of videotape provider, consumer, and PII. Next, it explains how a mobile app collects data, such as a consumer's personal information and why businesses are encouraged to share that personal information with third parties regardless of whether the consumer consents. This Comment then analyzes the legislative history of the VPPA, the issues with defining consumer and PII, and the societal response to privacy intrusions.

This Comment recommends that the Federal Trade Commission ("FTC") publish business guidance, promote consumer awareness, and continue enforcement actions against businesses who fail to protect consumers. Since another amendment to the VPPA may be unnecessary and easily outdated by new technology, courts should maintain a broad interpretation of videotape service provider, follow the recent trend of rulings on the definition of consumer, and adopt a flexible standard in defining PII. Finally, this comment concludes that while the VPPA serves as the minimum standard to prevent unauthorized disclosures by app developers and providers, new judicial standards and regulatory guidelines are better ways to regulate mobile commerce.

II. History of the VPPA: 1988 Enactment to 2013 Amendment

Prior to his controversial Supreme Court nomination, Judge Robert Bork stated, "[ajmericans only have the privacy rights afforded to them by direct legislation."8 Ironically, he would have to swallow his own words after a journalist simply asked a video store for Bork's rental history and published it in the Washington City Paper.9 The article raised questions about privacy rights associated with an indivdual's private viewing habits, such as whether a person should be allowed to portray a man's character by the types of videos he privately watches. …

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