The Senate Judiciary is holding a hearing right now on a piece of legislation, H.R. 2471, that you likely haven’t heard of but will have a big impact on your Netflix account. Yes. Netflix. Sometimes even called the Netflix bill (they have claimed responsibility for pushing it), it would allow consumers to grant companies a perpetual consent for sharing video rental records, rather than requiring consumers to decide if they want to share information every time they make a purchase.

While consumers would still opt into sharing, Netflix would clearly like consumers to set sharing as the default and then forget it. This change eviscerates the protections in an obscure but important privacy law, the Video Privacy Protection Act (VPPA).

How did we get here?

It was a privacy perfect storm: the contentious confirmation of a Supreme Court Justice, a reporter on the hunt for potentially salacious information and a new technology sweeping the country. The year was 1987 and Judge Robert Bork’s confirmation fight captivated the nation. In an effort to shape judgments about his character (and likely look for embarrassing dirt), the Washington DC City Paper obtained and published his video rental records.

Outrage was swift. Senator Patrick Leahy described the disclosure of the records as “an issue that goes to the deepest yearning of all Americans that we are here and we cherish our freedom and we want our freedom. We want to be left alone.” A legislative response quickly followed and in 1988 Congress passed the VPPA.

While focused on only a narrow case of records (largely video rentals and sales) the VPPA is in many ways a model statute. Strong protections against law enforcement access, careful limitations on how records can be shared or sold, a remedy for an individual to sue for violations and limits on how long records can be kept – the VPPA has it all.

All of this makes the VPPA pretty problematic for companies who want Americans to live in all sharing, all the time world. Companies like Netflix would like consumers to share everything with social networking sites like Facebook. Unfortunately the result of this sharing would be to almost completely erase the protections of the VPPA since they only apply to the video provider, not 3rd parties like Facebook.

But more important than specific changes, the VPPA is in many ways a model for what the ACLU believes current privacy law should look like. Today, in a way barely imaginable in 1988, we live in a world of records. Every communication online, every credit card transaction, every borrowed library book creates a record. Our travels are frequently recorded; from EZ Pass to subway fare to cell phone tracking, we leave a trail, frequently an unwilling trail. All of this information can be used in ways we did not intend. That’s why we’ve repeatedly called for updates to existing digital privacy laws like the Electronic Communications Privacy Act.

H.R. 2471 takes us in the wrong direction. At a time when we need more protections for our records, it gives us less (here’s a more formal description of our concerns) and we’re hoping tomorrow’s hearing will convince the committee to scrap the bill in favor of more comprehensive, privacy protective reforms.

Incidentally, some of the videos Judge Bork rented? Garden variety films such as A Day at the Races, Ruthless People and The Man Who Knew Too Much. Nothing salacious or exciting. But that’s not the point, is it? Privacy isn’t just about protecting us when we have something to hide; it’s recognition that the American default is “leave me alone”. That’s where H.R. 2471 misses the mark.

If you want to ask Congress to take action on the Electronic Communications Privacy Act please click here.

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On Monday the Supreme Court issued a landmark decision protecting privacy in the digital age. In U.S. v. Jones, a unanimous Supreme Court held that the police and FBI violated the Fourth Amendment when they attached a GPS device to Antoine Jones’s car and tracked his movements for 28 days. While the case turned on the fact that the government physically placed a GPS device on Mr. Jones’s car, the implications are far broader. A majority of the justices acknowledged that advancing technology, like cell phone tracking, gives the government unprecedented ability to collect, store, and analyze an enormous amount of information about our private lives.

Monday’s decision suggests that the Court is prepared to address that intrusion into privacy. Justice Samuel Alito delved to the heart of the matter when he explained that “in the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical.” The architecture of mass surveillance had not yet been constructed. A person walking down the street would barely be noticed, and there would be no permanent record of his movements.

Today everything goes down on our permanent records. This is most obvious on the Internet, where every mouse click can be monitored and recorded. Every search term we type — an anxious quest for information about a newly diagnosed health problem, a nostalgic query to learn about the life of an ex-boyfriend — is lodged in the vast data warehouses of Google. One of Gmail’s big selling points is that “you will never need to delete another message.”

But perhaps the most profound change is taking place not in cyberspace but in real space. The technology of surveillance is transforming our outdoor spaces so that they are just as susceptible to monitoring as the online world. Between networks of surveillance cameras, the possibility of GPS tracking, and the reality that the vast majority of Americans carry cell phones that track our every movement, there is no longer a technical barrier to mass surveillance of Americans’ movements. When this type of mass surveillance is combined with the rapid development of facial recognition technology, it may soon be possible for any law enforcement agent to identify a person and pull up a dossier of information about him, this represents a serious erosion of the privacy that Americans rightly expect and have traditionally enjoyed.

As practical barriers to mass surveillance fall, legal barriers become all the more important. The Jones decision is a heartening sign that as technology advances, the Supreme Court will not allow the Fourth Amendment to fall behind.

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As we told you earlier, the Supreme Court ruled yesterday in U.S. v Jones that the government violated the Fourth Amendment when it used a GPS device to track a suspect’s location for 28 days without a valid warrant. It is fantastic privacy decision from the Court, and we’re hoping it also leads to some fantastic privacy decisions by Congress. The law must catch up with new technology; ask Congress to support the GPS Act now!

We’ll have more on the decision itself soon, but for the purpose of political analysis here are the facts you need to understand. The actual majority ruling rests on relatively narrow grounds, but a majority of the justices (in two concurrences) recognize that the long term monitoring of each and every single movement made by a person (in this case it was a month), no matter what technology is used, impinges on an individual’s reasonable expectation of privacy. In a concurrence written by Justice Samuel Alito, four justices go further and state unequivocally that use of a GPS device of this type is a search and should receive the full protection of the Fourth Amendment.

Justice Alito’s concurrence then urges legislators to properly address location privacy issues:

In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. … A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.

To date, however, Congress and most States have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes. The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.

Justice Alito also notes that after a previous major Fourth Amendment case on wiretapping, “Congress did not leave it to the courts to develop a body of Fourth Amendment case law governing that complex subject. Instead, Congress promptly enacted a comprehensive statute”.

In sum, the Court has given Congress a good, strong push. They have clearly indicated that the Fourth Amendment is implicated and that there are countless technical and legal questions related to location tracking that lawmakers need to answer. They have also created strong encouragement for prosecutors (long the biggest bar to strong privacy protections) to make a deal. The Jones decision creates substantial uncertainty for prosecutors about when they need a warrant – something they will certainly want Congress to resolve. Given this case it is hard to imagine a careful prosecutor authorizing any type of location tracking (using either GPS or cell phone information) without probable cause under the Fourth Amendment.

Now it’s incumbent upon lawmakers to seize the initiative and resolve unanswered questions in the most privacy protective manner. A great way to do that is to support the GPS Act. This legislation, which has bipartisan support in both the House and the Senate, would require full warrant protection for all types of location tracking.

If you want to show your support for the GPS Act, please take action now!

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Following an action-filled week on Capitol Hill, votes on two anti-piracy bills in the House and Senate have been delayed indefinitely until there is wider agreement in Congress about the legislation.

Rep. Lamar Smith (R-TX), sponsor of the Stop Online Piracy Act (SOPA) just announced that “all consideration” of the bill would be halted “until there is wider agreement on a solution.”

An hour earlier, Senate Majority Leader Harry Reid (D-Nev.) announced a vote on SOPA’s sister bill in the Senate, the Protect IP Act (PIPA), would be postponed as well, stating that “there is no reason that the legitimate issues raised by many about this bill cannot be resolved.”

In an attempt to crack down on piracy online, these bills could potentially result in the takedown of large amounts of non-infringing, First-Amendment-protected content from the Internet, without even giving notice to the owners and producers of that lawful content. To show opposition to the overbroad legislation, earlier this week thousands of websites went dark to protest the proposed legislation.

We’re pleased to hear that opposing parties in Congress want to take more time to come up with a solution that addresses the concerns voiced all across the country, and seen all across the Internet this week.

We believe that Congress can find a solution to end piracy, without harming free speech online. Contact your  Member of Congress today to let them know that you want them to protect the open Internet.

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