The Video Privacy Protection Act (VPPA) Amendment of 2012 – Self-Outing 103?

January 11, 2013

THE WAY WE WERE:

Soon after the Patriot Act was first passed in 2001, many people were concerned about what a public library could and could not, or would and would not expose to law enforcement about their borrowing habits.  Indeed, many librarians resisted what they saw as an unnecessary invasion of patron privacy.  That was Self-Outing 101.[1]

THE WAY WE ARE:

Today, 12 years later in 2013, the world has changed, once again.  Social Media is allowing people to share so much (and sometimes too much with sexting; posting videos of one’s own unlawful activities; online piracy and defamation; and being “tagged” in a photo at a place where you did not say that you were going, with a person your significant other was not aware that you knew, or if so, knew you that way), that the law is now playing catch-up after this constant stream of invitations to engage in just that type of Self-Outing 102.

THE VPPA:

During the 1987 hearings for Judge Robert H. Bork[2] on his nomination to the United States Supreme Court, his private video rental history was leaked to the press and published.[3]  Washington lawmakers immediately realized that they faced the same privacy breach and disclosure risk, and shortly thereafter a bill was introduced in the United States Senate, and passed there and in the house to become the Video Privacy Protection Act of 1988 (VPPA).[4]

The VPPA was signed into law by President Reagan on November 5, 1988.  The law’s crux, as codified at 18 USC §2710 (wrongful disclosure of video tape rental or sale records), made it an offence to do so except (in no particular order): (i) pursuant to court order; (ii) to law enforcement; (iii) to the consumer itself; (iv) to other persons but with name and address only and no other pertinent records; (v) in the ordinary course of business; and for no other reason except (vi) “with the informed, written consent of the consumer given at the time the disclosure is sought”[5]  Increasing usage of social media simply made alleged violations of this law inevitable, despite the growing availability of click-consents online.  Having paid to settle a slew of actions on said alleged violations, Netflix,[6] amongst others, lobbied hard for an updating of this law, and has now succeeded.  The VPPA as now amended,[7] addresses the problem language by doing away with “at the time the disclosure is sought”,[8] and adding language to mandate an opt-in and opt-out procedure, with a 2-year duration before the opt-in lapses and must be left as lapsed, or renewed.  The section now also allows for electronic grants of consent with the addition of the language “including through an electronic means using the internet”[9]  Now, therefore, consent to share your movie viewing habits can be given and relied-upon, in the clear.

THE CONUNDRUM:

I am not a luddite or a social media detractor; but some things shared on social, can also be somewhat counter-social or anti-social.  Of course, others have the option of un-friending, de-following, dis-liking, and simply blocking the sharing and facts or content they are shown, as and when said options are available.  All things posted are permanent, and once accessed they can be re-posted, re-blogged, re-tweeted, printed and stored, potentially forever, both online and offline.

However, it would certainly help if more people remembered that there are 4 (“four”) corners of the social media “user experience”, being:

(A) the act (as initially done or later shared);

(B)  the actor or actors;

(C)  the law, and community standards (whether an online user community of that platform, local offline community, distant offline community, or humanity); and

(D) common sense (thinking before doing, or if not with full faculties on hand at that time or not considering how it might later look or be interpreted in a fuller context or due to the course of ongoing events/controversy, then at least spare a sober and rational thought (or two) before sharing; especially when you have the option to opt-in/out)![10]

Either way, the art of drafting and timely updating well-rounded social media usage policies is a dynamic (and ever-elongating), work-in-progress; with a future now undoubtedly promising ever more, and by no means fewer, User-generated Legality Issues (UgLIs) in user-generated content.

***********************************************************************

Author:

Ekundayo George is a sociologist and a lawyer, with over a decade of legal experience including business law and counseling (business formation, outsourcing, commercial leasing, healthcare privacy, Cloud applications, social media, and Cybersecurity); diverse litigation, as well as ADR; and regulatory practice (planning and zoning, environmental controls, landlord and tenant, and GRC – governance, risk, and compliance investigations, audits, and counseling) in both Canada and the United States.  He is licensed to practice law in Ontario, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America (U.S.A.). Please See: http://www.ogalaws.com

He is also an experienced strategic and management consultant; sourcing, managing, and delivering on high stakes, strategic projects with multiple stakeholders and multidisciplinary teams.  Please See: http://www.simprime-ca.com

Backed by courses in management, organizational behaviour, and micro-organizational behaviour, Mr. George is also a writer, tweeter and blogger (as time permits), and a published author in Environmental Law and Policy (National Security aspects).

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”), in whole or in part for their content, or their accuracy, or their availability.

This article does not constitute legal advice or create any lawyer-client relationship.


[1] Self-Outing 100, was and remains the plain confession, or being “caught red-handed” ….. in physical person; whether by another physical person or by some – now looking very ancient – electronic means, such as the  spycam, keylogger, telephoto lense, or voice recorder, amongst others.

[2] See Wikipedia.  Judge Robert Heron Bork passed away on Wednesday, December 19, 2012, aged 85.  Online: >http://en.wikipedia.org/wiki/Robert_Bork<

[3] Lila King.  From Robert Bork to Instagram in 7 steps.  Published on cnn.com.  Last updated Thursday, December 20, 2012.  Online: >http://www.cnn.com/2012/12/20/tech/web/bork-web-instagram/index.html<

[4] Congress of the United States.  The Video Privacy Protection Act, 1988.  P.L. 100-618, signed into law by President Ronald W. Reagan, November 5, 1988.  Here codified at 18 U.S.C. §2710.  Online: > http://www.gpo.gov/fdsys/pkg/USCODE-2010-title18/pdf/USCODE-2010-title18-partI-chap121-sec2710.pdf<

[5] Id.

[6] In re: Netflix Privacy Litigation. Settlement Agreement website.  Case No. 5:11-CV-00379 EJD; United States District Court, Northern District of California, San Jose Division – before The Honourable Edward J. Davila, USDJ.  (preliminary approval of settlement was granted on Thursday, July 5, 2012; accessed website was last updated October 31, 2012).  Online: >http://www.videoprivacyclass.com/SettlementAgreement.aspx<

[7] Congress of the United States.  The Video Privacy Protection Act Amendments Act of 2012.  H.R. 6671—112th Congress; signed into law by President Barack H. Obama, Thursday, January 10, 2013.  Online: >http://www.gpo.gov/fdsys/pkg/BILLS-112hr6671enr/pdf/BILLS-112hr6671enr.pdf<

[8] Id.

[9] Id.

[10] Stay-tuned to the media for some copious and very public Self-Outing 104 (tagging by proxy: you’re it), as ever smarter gadgets on the internet of things (the InterWeb, I call it) constantly advertising your behavior and putting you in the vicinity of 1 or more “problems” of which you may or may not have been aware, lead to your being sought by proper authorities for query as one of a large or targeted/profiled group of persons of interest.  If you urgently have to be elsewhere, are you fleeing and looking guilty, or was the thing shaking your pocket during the pre-interview: (i) actually and temporarily stolen/borrowed in that time window; or (ii) mistaken in its statement?  Is the voluntary broadcast of your own geographic location, your household energy use being akin to a grow-op, behavior propensity via video viewing/mobile browsing habits, a “statement” that you have a right to suppress from being used against you in a court of law?  Perhaps; we’ll see!

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