Senators, witnesses slam amendment to video privacy law

Changing a crucial video privacy law to allow companies to obtain blanket consent to share customers' viewing choices would gut one of the government's most effective privacy laws, according to witnesses and lawmakers at a hearing on Tuesday.

The Senate Judiciary subcommittee on Privacy, Technology and the Law held a hearing on Tuesday to examine proposed changes to the Video Privacy Protection Act (VPPA), which requires firms to obtain customers' consent before sharing any information about their video rental history.

Several lawmakers and witnesses used their opening remarks to criticize H.R. 2471, which passed the House in December and was referred to the Senate Judiciary Committee. Electronic Privacy Information Center executive director Marc Rotenberg said the bill could gut what is in many respects a model privacy law.

The bill would amend the VPPA to allow video providers to obtain consent to share customers' viewing histories up front rather than every time the information is shared. Netflix has strongly backed the bill to enable easier sharing of customer viewing habits on sites like Facebook.

"Netflix supports an opt-in regime for movie title sharing and believes this approach is workable and consistent with our member's expectations and desires," said Netflix general counsel David Hyman in his prepared remarks.

But according to several lawmakers and Rotenberg, replacing the case-by-case consent system with an opt-in would severely undermine the law's privacy protections.

"It's a really good thing that people can easily tell their video company — 'sure, go ahead and tell people I watched 'The Godfather,' but no, don’t tell them I watched, 'Yoga for Health: Depression and Gastrointestinal Problems,' ” said subpanel Chairman Al Franken (D-Minn.), referring to two films from the actual Netflix catalog.

"Consumers acquiescing to a one-time blanket consent to cover future video choices is not meaningful consent," added Rotenberg.

"Consumers likely do not plan movie choices months in advance, and likely will not recall that their consent to share their innocuous children’s movie selection will also apply to their more provocative selections."

Senate Judiciary Chairman Patrick Leahy (D-Vt.) also expressed concern about H.R. 2471: Leahy and ranking member Chuck Grassley (R-Iowa) sponsored the VPPA in 1988 after Supreme Court nominee Robert Bork's rental history was published by the Washington City Paper.

"I worry that sometimes what is 'simpler' for corporate purposes is not better for consumers," Leahy said.

"I worry about a loss of privacy because of the claimed benefit of 'simplicity.' This claim strikes me like the claim we often hear in large corporate merger proposals about so-called 'efficiencies.' Netflix announced a simpler billing practice a few months ago regarding its various services, and its customers rebelled."

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