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On November 29, 2012, the Senate Judiciary Committee approved several amendments to H.R. 2471, including a provision inserting a second section on "Electronic Communications Privacy." Read the Substitute Amendment that passed the Committee.
H.R. 2471 was introduced in the 112th Congress, which has adjourned. It has not yet been reintroduced.
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Passed House (Dec 6, 2011)
This bill was introduced in a previous session of Congress and was passed by the House on December 6, 2011 but was never passed by the Senate.
(Washington, DC – October 13, 2011) In response to the House Judiciary Committee’s markup of H.R. 2471, Gregory Alan Barnes, Director of Government Affairs for the Digital Media Association, issued the following statement:
“H.R. 2471 represents an important step forward for video service providers that are covered under the Video Privacy Protection Act of 1988 (“VPPA”). The bill’s passage will make it easier for consumers and covered services to come to an agreement over the exact terms and circumstances by which an individual’s rental history of prerecorded video cassette tapes or similar audio-visual materials can be shared with friends or acquaintances online.
“We commend Representative Bob Goodlatte and other members of the House Judiciary Committee for their leadership on this issue, and their willingness to update current law while not changing the scope or breadth of service providers covered under the VPPA’s existing provisions.”
* This organization’s position on this bill was entered by POPVOX.
The Video Privacy Protection Act was passed in 1988 following the disclosure of the private video rental records of a Supreme Court nominee by a video rental store to a news organization. There was broad-based support for passage and the Act was signed into law by President Reagan. The VPPA is considered a model privacy law in many respects - it is technology neutral, focusing on the obligations of businesses and the rights of customers in the collection and use of personal information. It makes clear the circumstances when personal information may be disclosed and it provides a private right of action when violations occur.
The VPPA makes no specific references to particular technologies. First Amendment concerns are addressed in the Act by recognizing that when the press seeks to publish information, Congress may not limit the rights of the press. However, businesses that collect information from their customers have an obligation to safeguard that information and to ensure it is used only for appropriate purposes. As with most privacy laws, the VPPA contains a consent provision that allows individuals to disclose their personal information to others if they wish. There is nothing in the Act that prevents individuals from so doing.
H.R. 2471 would undermine the key provision in the VPPA, which is the right of users to give meaningful consent to the disclosure of their personal information. Such blanket consent provisions transfer control from the individual user to the company in possession of the data and diminish the control that Netflix customers would have in the use and disclosure of their personal information. While we recognize that other companies routinely report on the activities of their customers, we note that Facebook users have never been particularly happy about this - the history of Beacon is well known - and also that the routine disclosure of video viewing activities is not something that most Facebook users are clamoring for. if anything, most Netflix users seem to be unhappy about the company's disregard for its customers.
The proposal is particularly surprising in light of the recent decision by the Federal Trade Commission concerning Facebook and privacy, which found that when companies seek to change the privacy defaults of their users, they are essentially engaging in an unfair and deceptive trade practice. That would be the practical impact of this amendment- to take away control of the user's information after the user had subscribed to the service. There is nothing in the proposal that would "modernize" the Act; it simply allows Netflix to post more information about the activity of its customers, whether or not the customers would choose to post such information themselves.
EPIC would therefore recommend that members of Congress vote NO on H.R. 2471. Users remain free to disclose their video viewing habits if they wish; there is no reason to change the default. EPIC would also recommend a hearing on the legislation so that all views, both for and against, can be presented, and Members are provided an opportunity to fully assess the proposal.
Privacy is the number one concern of Internet users today. lt would be foolish to adopt an amendment that weakens privacy legislation already in place.
* This organization’s position on this bill was entered by POPVOX.
December 7, 2011
Yesterday, the House of Representatives passed H.R. 2471, a proposed revision to the Video Privacy Protection Act (VPPA), the law that prohibits companies from disclosing information about your movie-viewing habits without your affirmative consent. Privacy advocates consider the VPPA one of the high-water marks of privacy legislation — video records are one of the few categories of personal information for which there exist strong protections under the law. For this reason, a lot of privacy groups are understandably wary about efforts to cut back on its protections. From CDT’s point of view, the suggested revision is reasonable and justifiable, though there are considerably more important privacy issues that Congress should be addressing (notably, the lack of basic protections around most other consumer data).
The call to revise the VPPA started this summer when Facebook announced its latest generation of “social apps” that allow users to passively share their music listening or news reading habits on an ongoing basis. Install one of these apps (like Spotify or the Washington Post Social Reader), and whatever you listen to or read through those apps will automatically be published to your Facebook friends, without the bother of having to affirmatively ask to share each song or story.
Netflix apparently wanted to take advantage of these apps as well but there was one problem: The VPPA says that consent must be obtained from a consumer whenever the disclosure is sought. Thus, users of a Netflix social app can’t give the app permission in advance to publish in real time whenever they watch Transformers 3 or The Notebook (again) — instead, they have to give a new permission each time they watch a movie.
For this reason, Representative Nadler introduced language at the October mark-up to ensure that any ongoing disclosure will be permitted only after a company obtains the informed, written consent of a consumer “in a form distinct and separate” from any other financial and legal obligations. We had suggested slightly different language based on a comparable provision in location privacy legislation introduced by Senator Franken that would also require the language to be clear and prominent, but the Nadler language probably does the trick — it’s hard to envision how a company could trick a consumer into opting in if the permission isn’t buried in a bunch of other language.
Despite this improvement, some privacy groups such as EPIC have strongly opposed the bill, and 116 members eventually voted against H.R. 2471 yesterday. We share the general concern that the VPPA should remain a model for other privacy legislation and should not be weakened, but we do not believe that this particular revision undermines the fundamental purpose of the law.
As a final note, however, while we believe this bill does not pose a threat to consumers’ privacy interests, it is unfortunate that this is the only privacy legislation that seems likely to move anytime soon — a minor tweak that merely allows consumers to passively share more data about themselves. If some Facebook users are glad for the change, that’s great, but it’s hardly something that most consumers have been actively clamoring for. We would feel stronger about the bill if it offered some benefit to consumers who don’t plan to take advantage of automatic sharing, such as by clarifying that the law applies to online streaming of movies — something that wasn’t envisioned when the VPPA was passed in 1988. More broadly, there’s a lot more consumer interest in generally improving privacy protections to make sure they understand what data is being collected and used about them, and to give them stronger controls around that data. While several promising bills have been introduced, there has been little action on those bills over the last several months. Hopefully next year, we’ll see progress on the more pressing need for more comprehensive privacy legislation.
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