Fast-Forwarding Privacy: A Video Tape Rental Statute in the Digital Era

By Thomas Carey. Chair of our Business Practice Group

Contentious Supreme Court nominations began with that of Robert Bork, whose originalist views led him to proclaim that there is no constitutional right to privacy. Americans, he believed, have only such privacy rights as may be conferred by statute.  Little did he imagine that his own personal experience would lead to just such a statute.

While Judge Bork’s nomination to the Supreme Court was in the balance and with his views on privacy very much in the news, a reporter obtained a list of the videos that Judge Bork and his family had rented from a local video store and published the list. The backlash from this incident led to the 1988 Video Privacy Protection Act (VPPA).

The VPPA provides a civil remedy against a “video tape service provider” that knowingly discloses personally identifiable information (PII) concerning its “consumers.”  “Consumer” is defined to include “any renter, purchaser, or subscriber of goods or services” from the video tape service provider. The VPPA authorizes courts to award punitive damages and attorneys’ fees to successful plaintiffs.

Given the demise of Blockbuster, this piece of legislation might be no more than an historic curiosity.  But judges with a penchant for more imaginative interpretations of statutes than Judge Bork would have countenanced have breathed new life into this statute, making it relevant to today’s cellphone app developers.

Two ongoing class action lawsuits have resulted in opinions that represent a lively conversation among those trial judges and appellate courts that have considered the VPPA’s vitality in the mobile phone era.  The most recent opinion was a breakthrough success for privacy advocates.

Cartoon Network and USA Today each developed free cellphone apps that allowed users to access video content. The apps would also transmit data to aggregators that would identify the videos that were watched. The data included the Android ID1 and, in the case of USA Today, the GPS coordinates, of the user’s device.

Users of these apps filed class action lawsuits alleging violations of the VPPA. In both cases, the defendants argued that the plaintiffs were not “subscribers” within the meaning of the VPPA because the services were free, and that sharing the Android ID was not the disclosure of PII for purposes of that statute.  Earlier cases had held that a device identifier was not PII, so precedent seemed to be on their side.

The first of these cases to go to trial involved The Cartoon Network.  In 2014, a federal trial court in Georgia granted a motion to dismiss the complaint.  The court said the user qualified as a “subscriber” to the Cartoon Network service even though it was free, but that the Android ID was not PII.

Next up was Gannett, the publisher of USA Today. Gannett contended that the Android ID cannot be PII because it identifies an object, rather than a human being. A federal judge in Massachusetts rejected that argument, pointing out by analogy that, while a home address describes an object, not a person, there can be little doubt that it is PII. More...