A bill that would allow Netflix to secure a blanket
agreement from users to share their choice of video rentals with third parties
looks like it will get more scrutiny in the Senate than it did in the House.
The bill, HR 2571, which amends the Video Privacy Protection
Act (VPPA) to allow for blanket permission from users, instead of the current
per-title permission requirement, got a hearing in the Senate Privacy
Subcommittee Tuesday (a recent subcommittee addition to the Judiciary committee
in the wake of increased focus on online privacy issues).
The bill passed in the Republican-controlled House Dec. 6 on
a vote of 303-116 and without a hearing. It was referred to the Senate
Judiciary Committee. The bill amends VPPA, which dates to 1988 and was passed
in the wake of the release of video rental records of then-Supreme Court
nominee Robert Bork.
The amendment that passed Dec. 6 is only a few lines long
and "clarifies" that "a video tape service provider [which includes
delivering that ‘tape' digitally] may obtain a consumer's informed, written
consent on an ongoing basis and that consent may be obtained through the
Internet."
At issue is whether the change to an ongoing consent that
would have to be rescinded is sufficiently protective of that information, essentially
boiling down to the opt-in versus opt-out debate of online privacy protection.
Netflix wants users to be able to provide a blanket
agreement to share movie choices, which includes on Facebook, just as they set
music or reading choices for default sharing with their friends. Critics of the
bill point out it does not limit with whom the information can be shared, that
friends today might be cyberbullies tomorrow, and that there is no provision
for how easy it would be to agree to share vs. how tough a company might make
it to unshare.
At the hearing, Sen. Al Franken (D-Minn.), chair of the
committee, clearly had concerns about those issues and said he thought the
House had rushed through the amendment, perhaps without all those who voted for
it understanding the ramifications.
Franken said he thought the VPPA needed updating, but said
he would like to see it applied specifically to online streaming. Netflix was
not interested in transposing VPAA to online given its per-view limitation on
sharing info.
Franken said that while he believed VPAA already included
online streaming given its wording talks about similar audiovisual distribution
of tapes (it also obviously did not mention DVD's back in 1988), he is not
confident a judge somewhere might not disagree.
Sen. Tom Coburn (R-Okla.) said he thought VPAA also needed
to be updated, but seemed more in line with Netflix, making the point that
Facebook users could share ongoing music or book preferences or TV show
preferences on Hulu with an initial blanket approval. But he also said Franken
had made some good points and ultimately seemed to be of two minds on the
issue. He asked Netflix General Counsel and hearing witness David Hyman why it
would not be relatively easy to let renters choose at the time of viewing
whether to share or not, since they would have to push the play button, as it
were, and why it would be any harder to have a "play and share"
button option. Hyman said that while they did have such an option for users
outside the U.S., where there is no limitation on a blanket sharing approval,
that function was not available on all devices, including some legacy
equipment, and added that they did that voluntarily and that Netflix did not think
the Congress should be deciding whether or not users could provide blanket
consent if they chose to. He said he agreed that opting out of that consent
should be as easy as making the initial election, but Franken pointed out the
amendment did not ensure that and that other, not-as-good actors, could make it
tough to deselect.
Patrick Leahy (D-Vt.), chair of the Judiciary Committee, who
helped craft the original VPPA back in 1988, was clearly troubled by the
amendment.
Leahy said that protecting privacy is getting increasingly
more difficult as businesses collect and store more info. He said technology is
indeed outpacing privacy laws, which is why he is pushing for personal data
privacy and security legislation.
He said that while companies may want to make it simpler to
track users across the board for their own benefit, it may not be better for
consumers. He added that it might also be simpler for industry without
antitrust or consumer protection laws. He said when corporate interests provide
a check-off for some fun new app, they may not be giving consumers the whole
story. That one-time check-off of consent to mine and sell info has the effect
of a "one-time surrender," he said.
Standing up for the amendment was Christopher Wolf, co-chair
of the Future of Privacy Forum. He said that VPPA's requirement of ongoing
permission for each viewing can frustrate a viewers' choice to authorize
ongoing disclosure in a social media world undreamt of in 1988. "Facebook
users commonly utilize a one-time authorization - a durable choice option - to
share a wide range of information with their friends," he told the
committee. "But their ability to use such an authorization to share
video-watching experiences arguably is thwarted by the restrictive, outdated
language of the statute requiring consent of the consumer given at the time the
disclosure is sought."
Wolf said that it is crucial to reform laws from an
"old framework" that does not fit today's digital world. "The
key to protecting privacy is not to be paternalistic and deny people the right
to share information as they wish or to assume they don't know what they are
doing online," he said.
