The Trials And Tribulations Of Navigating Federal Privacy Law In The Internet Age

Author:Mr Keith Randall
Profession:Waller Lansden Dortch & Davis

Netflix made headlines this week when it asked the U.S. Congress to change the Video Privacy Protection Act of 1998 (VPPA) so that Netflix can offer a Facebook app to consumers in the United States. The app, introduced by Netflix outside the U.S. last year, gives Facebook users movie recommendations based on the viewing habits of their friends. The Netflix app does nothing new from myriad apps on Facebook that provide the a similar service for books, news, or music. Those other apps, however, don't potentially run afoul of a federal law regarding video rental privacy.

Congress passed the VPPA in a rather belated response to the failed Supreme Court nomination of Robert Bork in 1987. Bork's video rental history was famously, if unremarkably, reported on in the press in response to Bork's assertion that Americans only have as much right to privacy as legislation gives them.

Currently, the law requires consumers to give consent before their video rental history can be publicized. The VPPA is, however, ambiguous over whether upfront consent from a consumer (in this case, clicking a button on Facebook) provides ongoing consent for the constant streaming of one's Netflix viewing history. Netflix argues that the ambiguity is hurting innovation in the arena of "social video innovation" and must be fixed.

Netflix's response to the ambiguity in the law highlights the dangers faced by companies attempting to navigate federal statutes and regulations dealing with...

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