Washington Markup

Will Congress Take Privacy Out of Your Netflix Queue?

By Chris Calabrese, Legislative Counsel, ACLU Washington Legislative Office at 11:41am

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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