Magazine article Information Today

Privacy and Your Video Content History

Magazine article Information Today

Privacy and Your Video Content History

Article excerpt

In the bygone days of yore, a trip to the local video rental store was a regular part of the home entertainment experience. Wandering through the aisles to select the latest action movie, romcom, thriller, or tear-jerking drama became a part of the total movie-watching experience.

Some video rental stores also had a back room, the one behind the door or curtain where--shall we say--the more provocative wares were kept. You made your selection from the front or back room and then brought your video to the counter. The folks there usually asked to see your membership card, driver's license, or credit card so that the video store could identify you if you failed to return the VHS tape or DVD.

While a few brick-and-mortar video rental stores continue to hang on, the 2012 version of the experience for most viewers is more likely to be through online streaming or downloading. You go online via your computer or TV set-top box; interact with services such as Comcast On Demand, Hulu, or Netflix to select the latest horror film, mockumentary, or superhero epic; and settle in. The back room has taken the form of selected pay-per-view or subscription channels, online streaming "tube" sites, or other subscription-driven content.

In both cases, customers expect that their video viewing selections will remain private and will not be shared with the world. However, in most cases, some record of your transactions is--and necessarily should be--developed and often retained. But does that information need to be retained? And what if it falls into the wrong hands?

Robert Bork's Video Rentals

In the 1980s, the video rental history of controversial Supreme Court nominee Robert Bork was leaked to the press. Even though Bork's actual rental history was described as "utterly, utterly unremarkable," it was nonetheless perceived as a gross invasion of his privacy. In response, the Video Privacy Protection Act of 1988 (VPPA) was enacted (Title 18, Section 2710 of the U.S. Code; www.law.cornell.edu/ uscode/text/18/2710). The VPPA provides that a "video tape service provider" cannot release information that would identify "specific video materials or services" to anyone without the consent of the consumer or under limited circumstances when a court order may be required. The act also requires that any information must be destroyed after 1 year.

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This analog-era law is now being tested in the digital era. In August, a federal court in California held that the VPPA applied in a class action lawsuit filed against Hulu (https://www.eff.org/sites/default/files/Hulu-Order_1.pdf). The lawsuit alleged that Hulu allowed a third-party advertiser to place cookies on users' computers and shared the information with other parties, including the Facebook social network and ScorecardResearch, a market research company. At least in the case of Facebook and Scorecard, the data included information that identified both the viewers as well as the video content being streamed.

Content, Not Delivery Mechanism

In examining the law, the court looked beyond the videotape and audiovisual materials language contained in the VPPA in determining that it applied to streaming media. The court noted that audiovisual materials focused on the content and not the delivery mechanism. The court also was clearly concerned about the privacy interests that Congress was targeting when it enacted the law. …

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