Last week, the Supreme Court granted certiorari in Spokeo, Inc. v. Robins, a case that may significantly impact the ability of plaintiffs to sue in federal court based solely on an alleged infringement of statutory rights. Plaintiffs often allege violation of statutory rights in privacy cases where standing for common law causes of action has proven more difficult to demonstrate and dismissal more frequent. A ruling from Supreme Court could upend this strategy, forcing plaintiffs to allege more than just a statutory injury across all their claims.
Two recent rulings in lawsuits against streaming video services under the Video Privacy Protection Act have tested the limits of those services’ VPPA compliance. The VPPA, enacted in 1988, prohibits the knowing disclosure of certain information about a consumer that “identifies a person as having requested or obtained specific video materials.” The actions described below address first, the relationship a person must have with a streaming service to be considered a “consumer” under the VPPA and second, the connection between a consumer’s identity and the identity of specific video material disclosed to a third party that a plaintiff must demonstrate when stating a VPPA claim.
A federal magistrate has ruled that the Video Privacy Protection Act (“VPPA”), a federal statute that restricts “video tape service providers” from disclosing information about their customers’ viewing habits, applies to online streaming video providers. This is the first time that the VPPA, enacted in 1988 in response to the disclosure of Supreme Court nominee Robert Bork’s video rental records, has been found to apply to streaming video services.
Should Congress exercise control over the types of information people can share in social media and whether they can share certain categories of information automatically? In an opinion piece published in the San Francisco Chronicle, Hogan Lovells privacy leader Chris Wolf addresses the issue of whether Congress should pass a law restricting the manner in which individuals might choose to share information on the streaming videos they watch through social media. The piece is summarized here, along with a link to Chris’ related Senate testimony.
Earlier this month, the Court of Appeals for the Seventh Circuit held that damages are not available under the Video Privacy Protection Act (VPPA) for violations of subsection (e) of the statute, the “Destruction of Old Records” provision. The court concluded that the damages provision only applies to a video tape service provider’s knowing disclosure of a consumer’s personally identifiable information–such as video viewing history–in violation of subsection (b) of the statute. The court relied on two key factors in reaching this decision: (1) the location of the damages provision vis-à-vis the prohibitions in subsections (b), (d), and (e); and (2) the absence of injury in the event that a video tape service provider fails to timely destroy consumers’ personally identifiable information as required by subsection (e).
Chris Wolf, co-chair of the Hogan Lovells Privacy and Information Management Practice today testified before the United States Senate Judiciary Subcomittee on Privacy, Technology and the Law at a hearing on “The Video Privacy Protection Act: Protecting Viewer Privacy in the 21st Century.” His spoken testimony is in this blog entry, and a copy of his written testimony is available through this post.