By Bradley W. Guyton
On January 10, 2013, President Obama signed H.R. 6671, the Video Privacy Protection Act Amendments Act of 2012, which amends the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710, to streamline the process for consumers to share data regarding their video viewing activities. In practice, this means video providers such as Netflix will be able to implement features that allow subscribers to share their video viewing history using social media services like Facebook.
The VPPA, which applies to “video tape service providers” that rent, sell, or deliver “prerecorded video cassette tapes or similar audio visual materials,” protects against the disclosure of personally identifiable information (PII) regarding specific video materials or services requested by a customer. Though the VPPA generally has been interpreted as applying to entities that sell or rent physical media like videotapes, DVDs or Blu-ray discs, a 2012 decision by the U.S. District Court for the Northern District of California, which we discussed here, suggested that online video streaming services like Hulu are subject to the law as well.
Prior to the recent amendment, the statute required video tape service providers to obtain the informed, written consent of consumers at the time disclosure of their PII was sought. As such, providers like Netflix were largely unable to secure the type of ongoing customer consent necessary to provide certain social media features – such as Facebook integration – that are available to users outside the United States.
The VPPA amendment makes obtaining the requisite customer consent much easier, as it allows consumers to consent via electronic means on the Internet and, if the consumer so chooses, to grant consent in advance for up to two years. In turn, service providers must obtain the consent on a separate form (distinct from other forms used to disclose legal or financial obligations), and must provide customers the opportunity to withdraw consent on a case-by-case basis, or to withdraw consent from ongoing disclosures.
The ability to obtain advance consent from customers offers increased flexibility for “video tape service providers” and is expected to lead to tighter integration between such video providers and social networks. However, at least while the Hulu litigation continues, the issue it raises concerning the reach of the VPPA could also raise questions about the impact of the new law on the duration of consents received by other online video providers.