Netflix made headlines this week when it asked the U.S. Congress to change the Video Privacy Protection Act of 1998 (VPPA) so that Netflix can offer a Facebook app to consumers in the United States. The app, introduced by Netflix outside the U.S. last year, gives Facebook users movie recommendations based on the viewing habits of their friends. The Netflix app does nothing new from myriad apps on Facebook that provide the a similar service for books, news, or music. Those other apps, however, don't potentially run afoul of a federal law regarding video rental privacy.
Congress passed the VPPA in a rather belated response to the failed Supreme Court nomination of Robert Bork in 1987. Bork's video rental history was famously, if unremarkably, reported on in the press in response to Bork's assertion that Americans only have as much right to privacy as legislation gives them.
Currently, the law requires consumers to give consent before their video rental history can be publicized. The VPPA is, however, ambiguous over whether upfront consent from a consumer (in this case, clicking a button on Facebook) provides ongoing consent for the constant streaming of one's Netflix viewing history. Netflix argues that the ambiguity is hurting innovation in the arena of "social video innovation" and must be fixed.
Netflix's response to the ambiguity in the law highlights the dangers faced by companies attempting to navigate federal statutes and regulations dealing with privacy in the internet age. A bill passed 14 years ago is sufficiently ambiguous, and the consequences of violating it are sufficiently severe, that a leading internet company has put on hold the roll out a major tool for consumers. When something as important to innovation as the internet is regulated by privacy statutes such as the VPPA or the Stored Communication Act (written in the 1980s), companies must tread lightly in introducing new social media ventures. Here's hoping that Netflix resolves its issue with the VPPA, so we can all go back to over-sharing about our favorite movies on the internet and look forward to a future full of "Borking."*
*William Safire defined the verb "to Bork" as "the way the Democrats savaged Ronald Reagan's nominee, the Appeals Court judge Robert H. Bork." One can only imagine what the nomination battles of the future will look like, when both parties have access to twenty years of the tweets and Facebook posts, not to mention Netflix preferences, of the next generation of Supreme Court Justices.
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