Video Privacy Protection Act

The Video Privacy Protection Act (VPPA) is a bill that was passed by the United States Congress in 1988 as and signed into law by President Ronald Reagan. It was created to prevent what it refers to as "wrongful disclosure of video tape rental or sale records" or similar audio visual materials, to cover items such as video games. Congress passed the VPPA after Robert Bork's video rental history was published during his Supreme Court nomination and it became known as the "Bork bill". It makes any "video tape service provider" that discloses rental information outside the ordinary course of business liable for up to $2,500 in actual damages unless the consumer has consented, the consumer had the opportunity to consent, or the data was subject to a court order or warrant.

Origin of Computer-based VPPA Litigation

With the emergence of new-age computing technology and devices in the early 2000's came websites, 3rd party advertising and tracking firms using mechanisms that violated a user's privacy. While computer technology was progressing rapidly, federal and state laws had failed to be proactive, a risk to society of ungoverned technology. As such, litigation for violations was relatively non-existent. A new method to litigate Federal privacy cases was needed to protect the hundreds of millions of people violated by unauthorized tracking user's activities online.This was a formidable task since no law firms had litigated cases involving the computer technology inherent within the exchange of user data between third-party affiliated entities, thus there was no case precedent, no "blueprint" to follow. Earlier cases, such as the double-click "cookie" case in 2001, had relied on using a wiretap statute, the Electronic Communication Privacy Act ("ECPA"). While a plausible allegation, it was a weak allegation since the website user had granted such permissible use within the website’s term of service ("TOS").

The online advertising industry, in association with analytic companies, had begun using video ads to conduct its ubiquitous tracking, consumer's attention shown to be drawn to such as opposed to written content, In later years, these tracking methods would expand to photos and audio, IE., In 2008, cell phones were re-designed to include a new method of tracking, the use of social apps to collect photos, a process which now permitted a one step "click" process to uploading a photo as opposed to the previous six steps, thus consumers were now more inclined to upload photos in mass. This allowed content to be provided for free and which formed the basis for the tracking, IE., EXIF data. Such acts were captured when Attorney Malley used software applications to log HTTP/HTTPS traffic between a computer's web browser and the Internet, analytic tests using two computers interfaced, producing indisputable evidence of such activities: moreover, detailed reports of any and all parties involved in such nefarious activities, IE., "tracking the trackers". In the continuing research of the Industry's business practises in order to determine it's monetization interests, such revealed the incorporation of complex graphics within online ads, and the exchange of data derived from video ads not confined to an internal network, used via a TCP/IP protocol. This unauthorized activity would become the core allegation.

Prior to 2008. VPPA had not been cited in litigation involving online technology. While the 1988 act concerned betamax/video rental records, such as DVDs and Video games etc., Attorney Joseph H. Malley,(Law Offices of Joseph H. Malley, PC, Dallas Texas) determined that VPPA could be cited, an investigation that involved months of research of state and local privacy laws, in an attempt to create a "template," which didn't exist for data privacy litigation. Malley then filed a Federal Class Action against Facebook, and thirty-three companies, including Blockbuster, Zappos, and Overstock, due to privacy violations caused by the Facebook Beacon program. This program resulted in users' private information, obtained from third-party affiliate marketing websites, being posted on Facebook without consent. This act was referenced in the Lane v. Facebook, Inc. class action.

Attorney Malley, who had developed a litigation strategy in the early 2000’s involving another federal privacy law, the Driver Privacy Protection Act ("DPPA"), a law related to the unauthorized access to DMV records and permitted statutory damages for privacy violations, IE., $2500.00 damage award "per person-per violation, (per company)", successfully filing numerous federal class actions against 3-400+ companies, sought a similar strategy, but needed to develop a new theory of liability for added assurance to survive a motion to dismiss.

Extensive research and case analysis of Federal and State laws, regulations, and Court Opinions, yielded limited assistance. An adaptation of the law was needed to litigate this new computer technology involving the unauthorized access to online consumer's data. Attorney Malley seized on an archaic law written concerning the technology of the 1980's involving video cassettes, VHS, and Betamax, the Video Privacy Protection Act (“VPPA”), 18 U.S. Code § 2710 - Wrongful disclosure of video tape rental or sale records, (1988), eenvisioning that the websites, and any affiliated third-parties, which used the audio and/or video within its marketing ads were "video-providers"; moreover, this content, ads and online games, merely a video; moreover, the essential functionality of the illegal transfer, a “wrongful disclosure”, (core elements needed to prove-up a VPPA violation). The use of the VPPA law in regard to this new-age computer technology would set precedent, and become the new "blueprint" used in Federal privacy litigation. The lawsuit alleged the release of the records was a violation of the Video Privacy Protection Act.[1]

In December 2009, once again, Attorney Joseph H. Malley, (Law Offices of Joseph H. Malley, PC., Dallas Texas), representing an anonymous plaintiff, filed a lawsuit against the online DVD rental company Netflix over its release of data sets for the Netflix Prize, alleging that the company's release of the information constituted a violation of the VPPA, see: Doe v Netflix.[2] Netflix cited the act in 2011 following the announcement of its global integration with Facebook. The company noted that the VPPA was the sole reason why the new feature was not immediately available in the United States, and it encouraged its customers to contact their representatives in support of legislation that would clarify the language of the law.[3] In 2012, Netflix changed its privacy rules so that it no longer retains records for people who have left the site. This change was due directly to a lawsuit indicating violation of the act.[4] VPPA litigation was then brought against Hulu, a San Francisco federal trial court found the VPPA’s subscriber protections apply to users with Hulu accounts, a class action also involving Attorney Joseph H. Malley. [5]

Due to the surge of VPPA Litigation, Social Media/Tech Companies lobbied Congress for "assistance." Attorney Joseph H. Malley was contacted by the Chief Counsel, Democrats|Subcommittee on IP at U.S. House of Representatives to provide assistance related to the VPPA Amendment proposal. In January, 2013, President Obama signed into law H.R. 6671 which amended the Video Privacy Protection Act to allow video rental companies to share rental information on social networking sites after obtaining customer permission. Netflix and Facebook had lobbied extensively for the change.[6].

Further results of VPPA litigation after the passage of these amendments were initially mixed. In 2015, the United States Court of Appeals for the Eleventh Circuit found that the law's protections do not reach the users of a free Android app, even when the app assigns each user a unique identification number and shares user behavior with a third party data analytics company.