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A Modest Proposal For Protecting Our Privacy

Jay Stanley,
Senior Policy Analyst,
ACLU Speech, Privacy, and Technology Project
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July 17, 2012

One of the biggest problems with protecting privacy in the United States is that, almost alone in the advanced-industrial world, we do not have an overarching privacy law that codifies the basic privacy principles that are accepted around the world as the gold standard for protecting this human right.

Instead, the United States pursues a sector-by-sector approach to privacy. The result is that our privacy protections vary wildly according to area. We have some (inadequate) protections for our health and financial data, very few protections for our commercial transactions, and very rigorous protections for our video rental records.

The protection for video rental records comes from a 1988 law entitled the “Video Privacy Protection Act.” This legislation came about after a local newspaper obtained and published Robert Bork’s video rental records while he was being considered by the Senate for confirmation to the Supreme Court. While his rental records turned out to contain nothing racy or scandalous, members of Congress were apparently greatly concerned by this development and hurriedly enacted the law. And, rare for a U.S. privacy law, the VPPA actually provides for $2,500 in damages, plus punitive damages and attorneys’ fees, for violations.

The result is that privacy protection for our video records is much higher than for much other personal information. For example, under its “Third Party Doctrine,” the Supreme Court has held that the financial information that you share with a bank is no longer entitled to Fourth Amendment protection, because you’ve already shared it with others (the bank).

Under the VPPA, however, the government can only obtain your video records with a warrant, other court order, or grand jury subpoena.

It occurs to me that perhaps Americans needing greater privacy in their personal materials might make use of this fact. I hereby propose a new standard for the encoding of communications, medical records, and other information: the “Movie Code.”

The concept is simple: instead of using regular alphanumeric characters to express data, use a list of videos. The alphabet would be represented by movie titles, like this:

A – All About Eve
B – Bonnie and Clyde
C – Charlie’s Angels
D – Duck Soup

Thus, for example, an e-mail to a doctor asking for a prescription refill might look like this:

Dear Dr. Smith, M.D., VTSP

I would like to reorder the following from your “rental library”:
It’s a Wonderful Life
All About Eve
Annie Hall

True, Movie Code will be less efficient. That is one of the problems with failing to protect privacy: when people insist upon it, which sooner or later they always do, it forces people to adopt workarounds and thereby makes our institutions (such as the Internet) less useful and efficient. Just like taxes. But we’ve got plenty of bandwidth these days and hard drive storage space is cheap, so we recommend that Americans adopt Movie Code without delay. The WC3 should also get to work formulating a standard.

Of course, some nit-pickers may claim that the VPPA only applies to “video tape service providers,” defined as “any person, engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.” In the YouTube era, half of Americans might legitimately claim that they are providers of video. For the other half, there are surely ways to qualify as VTSPs, such as by selling some old VHS tapes at a garage sale.

Thanks to Congress’s vigilant protection against embarrassing disclosures—in one area at least—Americans will once again be able to engage in personal transactions with the full protection of law for their privacy.

And maybe as our policymakers come face to face with more privacy issues that threaten to affect them, we’ll have even better options for protecting our privacy.

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