Defending VPPA claims: A different perspective

The Video Privacy Protection Act (VPPA) was enacted in 1988, and provides that a video tape service provider who knowingly discloses the personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person. The law was put in place to “preserve personal privacy with respect to the rental, purchase or delivery of video tapes or similar audio visual materials.” S. REP. 599, 1988 U.S.C.C.A.N. Over the past decade, there has been a trickle of class action lawsuits filed under the VPPA, although in recent times, technological growth has allowed lawsuits to proliferate at a more rapid pace. A defendant’s visceral reaction to a lawsuit may be dismissive: let’s face it, the VPPA was passed in 1988, “video tape service providers” are relics of a bygone era, and video tapes, for the most part, are no longer sold or rented to consumers.  And on the face of the statute, that reaction is not unwarranted. But much like the US Constitution is a living document, plaintiffs’ attorneys take the position that statutes are flexible and subject to interpretation in light of evolving technological developments. Consequently, defendants must thoughtfully analyze potential  defenses to a claim brought under a statute’s protections. The VPPA is no exception to this rule.

When analyzing potential defenses to a VPPA class action, it is essential to understand the law’s history and purpose. Without that foundation, any potential defense can collapse. The most essential questions to ask is what interests were Congress was trying to protect; did Congress intend the statute to be applicable to evolving technologies; and if so, in what context. After all, Congress has a long history of enacting statutes that protect consumer privacy (for example, the Reform Act of 1976, the Right to Financial Privacy Act of 1978, the Privacy Protection Act of 1980, the Electronic Funds Transfer Act of 1980, passed the Fair Debt Collection Act of 1980, the Cable Communications Policy Act of 1984, and of course, the privacy protections of the  Health Insurance Portability and Accountability Act of 1996). Each of the foregoing statutes sought to protect a different privacy interest, but they are all, for the most part, cut from the same cloth. As new proposed statutes are introduced in Congress, their purpose remains the same. Take for example these words spoken by three Senators:

There is no denying that the computer age has revolutionized our world. Over the past 20 years we have seen remarkable changes in the way each one of us goes about our lives. Our children learn through computers. We bank by machine. We watch movies in our living rooms. These technological innovations are exciting and as a nation we should be proud of the accomplishments we have made. Yet, as we continue to move ahead, we must protect time honored values that are so central to this society, particularly our right to privacy. The advent of the computer means not only that we can be more efficient than ever before, but that we have the ability to be more intrusive than ever before. Every day Americans are forced to provide to businesses and others personal information without having any control over where that information goes. These records are a window into our loves, likes, and dislikes. In an era of interactive television cables, the growth of computer checking and check-out counters, of security systems and telephones, all lodged together in computers, it would be relatively easy at some point to give a profile of a person and tell what they buy in a store, what kind of food they like, what sort of television programs they watch, who are some of the people they telephone. I think that is wrong. I think that really is Big Brother, and I think it is something that we have to guard against.

You might assume that  those words were recently spoken. But would it surprise you to learn that those are the words of Senators Grassley, Leahy and Simpson (3 of the 4 sponsors of the VPPA), from October 5, 1988?  Indeed they were, 35 years ago, when the  impetus for the legislation was the publication by a newspaper of a profile of Supreme Court nominee Robert Bork based on the titles of 146 films he and his family rented from a video store.

Based upon the Senators’ language and the VPPA’s its legislative history, it’s no surprise that courts have found that the VPPA is not limited to brick and mortar video tape stores (or video tapes), but rather, protects “generally a consumer's substantive privacy interest in his or her video-viewing history.”  Eisenberger v. ESPN, Inc., 876 F.3d 979, 983 (9th Cir. 2017). These courts take the position that every disclosure of an individual's personally identifiable information and video-viewing history offends the interests that the statute protects. It’s for that reason that more than a decade ago, a court in the Northern District of California – in what is generally viewed as the first internet-age VPPA suit, noted that the use of the language “similar audio video materials” in the statute was put there to  ensure that VPAA's protections would retain their force even as technologies evolve. In re Hulu Priv. Litig., No. C 11-03764 LB, 2012 WL 3282960, at *6 (N.D. Cal. Aug. 10, 2012).This does not mean, however, that there aren’t  many strong defenses to VPPA claims. Although the analysis of VPPA claims is fact specific, it’s important to note that  Congress did not intend to issue a blank check concerning  how the terms “video tape service provider,” “knowingly,”  “consumer” or “similar audio visual materials” should be defined. Court are still grappling with these issues, and there are persuasive arguments to be made in order to extricate companies from potential VPPA liability.