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
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
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
*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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The 2010 theft of an unencrypted laptop containing confidential health care information made front-page news in 2013, not because a huge number of patients were affected, but for the exact opposite reason.
Any company that collects personal data from consumers should take proactive steps to have appropriate legal counsel review its data security practices, as well as its terms of service or privacy practices, to identify any potential problem areas.
The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) published on its website a series of factsheets designed to educate consumers unfamiliar with their rights under the Health Insurance Portability and Accountability Act’s (HIPAA) Privacy and Security Rules.