Senate Privacy Subcommittee Members Oppose House VPPA Update
Senate Privacy Subcommittee members expressed their concern with the House’s attempt to modernize the Video Privacy Protection Act (VPPA), during a subcommittee hearing Tuesday. Senate Judiciary Committee Chairman Pat Leahy, D-Vt., along with Privacy Subcommittee Chairman Al Franken, D-Minn., and Ranking Member Tom Coburn, R-Okla., said the 24-year-old law should be updated, but each said they were concerned about the unintended consequences of the House amendment, HR-2471.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
HR-2471 aims to amend the VPPA, a law that forbids “video tape service providers” from disclosing what movies people are watching unless a customer gives them permission to do so, by permitting those providers to obtain a consumer’s ongoing written consent through the Internet. The bill, which passed the House in December 303-116, could have tremendous implications for online video streaming sites that seek greater integration with social networks.
House IP Subcommittee Ranking Member Mel Watt, D-N.C., testified at the hearing that HR-2471 as passed would have “unintended negative consequences for consumers and affected businesses.” There are at least four “substantive problems” with the bill, said Watt: The legislation fails to clarify who it applies to; its disclosure provisions are unlimited; only one provision in the original VPPA is actually updated by the amendment; and no consideration was given to the amendment’s effect on state laws. “It was a mistake” for HR-2471 to move through the House “relatively under the radar and without the benefit of a single hearing,” he said.
Franken said he has “some reservations” about HR-2471. “I think this was rushed through the House maybe and we need to work on this.” Specifically he said the bill will eliminate users’ ability to give case-by-case consent to video service providers. “That worries me —- because case-by-case consent is a really good thing,” he said. Franken also said any update to the VPPA must ensure that the language covers streaming video technology, something he called “the future of video."
But Netflix General Counsel David Hyman said that he would not support language that applies VPPA rules to streaming online video. “Merely taking the VPPA and saying that it applies to streaming means there are a whole host of issues that need to be addressed,” he said. For instance, e-books will begin incorporating video: “Does that mean that books are covered by the VPPA?” Hyman asked. Franken was not persuaded by the argument. “I am troubled that you are trying to exclude streaming from this,” he said.
The House proposal does not adequately update the law with respect to streaming or cloud computing, said Leahy. He also backed an update to the Electronic Communications Privacy Act and said Congress must consider a “comprehensive reform to update our privacy laws.”
Leahy said he was concerned that a “one-time check off of consent to disclose, mine, sell and share information does not adequately protect the privacy of consumers. … When dominant corporate interests entice a check off in order to receive what may seem like a fun new app or service, they may not be presenting a realistic and informed choice to consumers. A one-time check off that has the effect of an all-time surrender of privacy does not seem to me the best course for consumers.”
Coburn urged online video providers to give consumers a “one line statement” each time they watch a movie that offers them the ability to share their viewing habits with others. “If the question that comes up on my iPad is ‘do you want to share this information?’ and I have to say yes or no. … Why is that not protecting their rights rather than a blanket ‘Oh I forgot about it’ or ‘I'm hung over from the night before and I'm not thinking clearly’ and I pushed a button on something I'm not ready to share?”
But Future of Privacy Forum Founder and Co-Chairman Christopher Wolf told Coburn that if consumers are provided with too many privacy notifications they will ultimately begin ignoring them: “Senator, the problem with that is that if consumers are presented with notice over and over again they tend to tune them out and they ignore them and they will have no gain whatsoever.”
Coburn suggested a simpler solution: create a button beside the Netflix play button that says “play and share,” therefore giving consumers an affirmative consent mechanism to share or not share their viewing habits each time they play a movie. But Hyman said creating such a mechanism on some devices may not be technically feasible. “Technology changes over time,” he said. “We can do that on certain devices -- on others we can’t do that.” Instead Hymen advocated the opt-in privacy approach in HR-2471, which he called “workable and consistent with our members’ expectations and desires.”