DOES THE VIDEO PRIVACY PROTECTION ACT PROTECT USERS OF FREE CELL PHONE APPLICATIONS?

Author:Sweeney, Molly
 
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  1. INTRODUCTION 242 II. THE VIDEO PRIVACY PROTECTION ACT 244 III. BACKGROUND 249 IV. VPPA APPLICATION 251 A. In re Hulu Consumer Privacy Litigation 252 B. Sterk v. Redbox Automated Retail, LLC 255 C. Locklear v. Dow Jones & Co 260 D. Austin-Spearman v. AMC Network 263 Entertainment LLC V. CIRCUIT SPLIT 266 VI. THE THIRD CIRCUIT CASE 275 VII. CONCLUSION 280 I. INTRODUCTION

    This Note discusses the Video Privacy Protection Act ("VPPA" or "the Act") and how it applies to users of cell phone applications. The VPPA protects consumers and their personally identifiable information ("PH") from being disclosed by video tape service providers. (1) The VPPA has been applied in two recent court cases to users of cell phone applications. (2) These users downloaded free applications to their cell phones to watch video clips, and, at some point, their information was shared with third parties for data analytics and marketing purposes. (3) The First and Eleventh circuits heard these cases and, although faced with a similar set of facts, held differently. (4)

    This Note considers and analyzes those cases, along with some earlier VPPA cases applying the statute to other methods of viewing and streaming television, movies and video clips, to formulate an opinion as to whether people using these cell phone applications should be protected under the Act.

    Moreover, this Note considers a more recent Third Circuit case, which applied the VPPA to individuals watching video clips on a website. (5) After Plaintiffs lost on their VPPA claim, their attorneys certified three questions to the Supreme Court. (6) One asked if various identifiers used to track internet consumers constitute PII within the meaning of the VPPA. (7) The Supreme Court recently denied Plaintiffs' petition. (8) However, if the Supreme Court had answered this question, it might have provided some much-needed clarity in the realm of developing technologies and the VPPA.

    Further, this Note also assesses a 2012 amendment to the VPPA which made obtaining consumers consent for sharing PII available on an ongoing basis and available through the internet. (9) However, no amendment or change was made to the definitions of "consumer," "subscriber" or PII. (10) This Note presents how courts are interpreting this recent amendment and how an additional amendment or clarification from Congress may be beneficial for courts hearing VPPA claims.

    This Note also discusses what it would mean for cell phone users if the Supreme Court had elected to hear the Third Circuit case, or a similar case. In conclusion, this Note calls for a broad interpretation of the VPPA for the best interests of consumers.

  2. THE VIDEO PRIVACY PROTECTION ACT

    "The Video Privacy Protection Act of 1988... was passed [after] Supreme Court nominee Robert Bork's video rental records" were obtained and disclosed by a newspaper. (11) Washington City Paper writer Michael Dolan requested, and received, an entire list of Judge Bork's video rentals. (12) Although the list contained "pretty boring" films, it raised concerns for individual's privacy which resulted in the passage of the VPPA. (13)

    The VPPA was enacted "to preserve personal privacy with respect to the rental, purchase, or delivery of video tapes or similar audio visual materials" (14) and prohibits the "[w]rongful disclosure of video tape rental or sale records (15) The statute indicates that "[a] video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person." (16)

    The statute provides definitions for the various terms mentioned in the text of the statute:

    (1) the term "consumer" means any renter, purchaser, or subscriber of goods or services from a video tape service provider; (2) the term "ordinary course of business" means only debt collection activities, order fulfillment, request processing, and the transfer of ownership; (3) the term "personally identifiable information" includes information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider; and (4) the term "video tape service provider" means 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, or any person or other entity to whom a disclosure is made... but only with respect to the information contained in the disclosure. (17) The VPPA fails to clearly define "consumer" or "subscriber." (18) This has left courts with the task of interpreting what Congress meant by the words. Various definitions of the words "subscriber" and "consumer" have been used by courts to try and identify how best to apply the terms to users of cell phone applications. (19) Some definitions include (1) a "commitment, relationship, or association" (20) and (2) to "be allowed to access electronic texts or services by subscription." (21) Since there are multiple ways in which to interpret the term "subscriber," there has been discord among the circuits.

    Since 1988, when the VPPA was enacted, the way in which we view and rent movies has significantly changed. (22) Where people once went to a store, selected a movie off a shelf, and brought it home, now, there is a wide variety of ways in which a person can rent and view movies and watch video clips. (23)

    People can obtain movies from a "Redbox" that simply requires the touch of a finger and a credit or debit card. (24) Additionally, products like Roku (25) and Apple TV (26) are enabling people to access streaming services such as Hulu, Netflix, and Amazon Video through their televisions, granting access to a wide range of movies to rent and watch. (27) Another way in which people have been granted greater access to movies and videos is through their cell phones. (28) People can use an internet browser, such as Safari, to look up videos and clips on a website. (29) Additionally, many television providers have cell phone applications that allow users to download clips and have them at their fingertips. (30)

    These applications are enabling people to easily access the news, without turning on a television, or picking up a newspaper. (31) Users can open their phones to an application which brings the news right to them, including various video clips or news segments. (32) Additionally, users can download and open an application provided by their favorite television channel to watch clips and episodes of their favorite shows. (33)

    In 2012, by the time many of these modes of viewing videos and clips were widely available, Congress amended the VPPA. (34) However, it was not amended to clarify what was meant by "consumer," "subscriber," or PII. (35) It was amended "to clarify that a video tape service provider may obtain a consumer's informed, written consent on an ongoing basis and that consent may be obtained through the Internet." (36)

    The amendment came about largely due to Netflix's influence. (37) Netflix lobbied Congress to amend the VPPA so providers like Netflix can "obtain a one-time, blanket consent from its users that enables it to share titles viewed on their website without having to seek expressed permission each time the viewer watches a video." (38)

    The House Report indicates that the House of Representatives recognized how the new developments in technology have changed the way in which people share information and how people rent or view movies. (39) Although recognizing these changes and developments, Congress elected not to update or clarify the definitions of "consumer," "subscriber," and PII. (40) The House Report indicates that the amendment "does not change the scope of who is covered by the Act, the definition of 'personally identifiable information,' or the privacy standard adopted by Congress when the Act was first enacted. Specifically, it preserves the requirement that the user affirmatively provide informed, written consent." (41)

    The Senate Report also indicates that Congress recognized how easy it is for people to share information with the growth of the internet and technological advancements. (42) The Senate Report indicated that "[t]oday, many Americans post their opinions and recommendations on social networking sites, like Facebook and Twitter." (43) It is interesting to note that both the Senate and House of Representatives indicated that information is more easily shared these days. (44) This led Congress to amend the VPPA by allowing video tape service providers to more easily obtain consumers consent as relates to their PII. (45) However, it did not cause Congress to update the definition of "consumer" or elaborate on who qualifies as a "subscriber."

    Congress' decision not to clarify the terminology could mean that it intended for courts to continue interpreting the definitions. In the alternative, Congress possibly did not want to assign set definitions to the words given the rate at which technology is changing. However, there is clearly still some confusion as to how courts are meant to interpret "consumer," "subscriber," and PII.

  3. BACKGROUND

    The VPPA protects consumers' privacy and their personal information regarding the videos they choose to watch. (46) The First and Eleventh Circuits have been asked whether users of free cell phone applications are protected as consumers under the meaning of the VPPA. (47) The circuits answered this question in contradictory ways. (48) According to the Eleventh Circuit if an individual is not classified as a "consumer," meaning they are not found to be a "renter, purchaser, or subscriber," (49) their PII is not protected under the VPPA. (50) According to the First Circuit, if they are identified as a "consumer," meaning they are found to be a "renter, purchaser or subscriber," (51) then who can use and access their PII, without their permission, is protected. (52)

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