Lawmakers question proposed change to video privacy law

Let's say you like to watch heady documentaries over Netflix's streaming service and would like to share recommendations with your friends on Facebook. Netflix would like to offer that service, but the company says a 24-year-old U.S. law is in the way.

A bill that passed the U.S. House of Representatives in December would allow Netflix and other streaming video providers to get one-time consent from customers to share their movie choices, not only with social-media outlets but also with third-party partners of the video providers. The bill, called H.R. 2471, sailed through the House with little debate and would amend the Video Privacy Protection Act (VPPA), a 1998 law that prohibits video rental providers from disclosing the lists of movies a customer has seen.

Netflix and other supporters of the bill say it would be cumbersome to get a customer's permission every time he wants to share a movie recommendation on Facebook or other social-media sites. Facebook users can share information about books they're reading or music they're listening to without having to opt in to sharing every time, supporters of the bill say.

But a handful of senators and privacy advocates questioned the legislation in a Tuesday hearing.

Let's say you like to watch heady documentaries on Netflix's streaming service, but once in awhile, you head over to the steamy romance section and watch "Last Tango in Paris" or "Reform School Girl." Would you want to automatically tell all your Facebook friends that you're watching one of those movies at 1 a.m. on a Saturday?

Members of the Senate Judiciary Committee's privacy and technology subcommittee asked witnesses at the hearing, including Netflix general counsel David Hyman, why this change to the VPPA is needed. A blanket approval to allow Netflix to share customers' movie choices with Facebook and other partners could lead to embarrassments, some senators said.

Netflix offers a service in other countries where customers can share what movies they're watching with Facebook friends, but viewers on PCs can click a button that stops Netflix from sharing any movie, Hyman said. But under the VPPA, it's unclear whether Netflix can get ongoing consent from U.S. customers to share their movie choices, he said.

Social media offers customers a powerful way to discover movies and television shows recommended by friends, he said. But the ambiguity in the VPPA "places a drag on social video innovation," when social-media users are free to share book, music and news article recommendations without giving permission each time, he said.

While Netflix wants the ability to get one-time permission from customers to share movie choices, Senator Tom Coburn questioned why it would be harder for Netflix to offer a button asking customers whether they want to share each movie. When customers allow Netflix to share their movie choices, they're giving the company information "they can make money off of," he said.

"Prudence in the protection of privacy ought to be the thing that guides us," added Coburn, an Oklahoma Republican. "The question is, should we err on the side of privacy or err on the side of commerce?"

Congress shouldn't be in the business of limiting what information Web users want to share on social media, said Christopher Wolf, a privacy lawyer with the Hogan Lovells law firm in Washington, D.C. In addition, Web users tend to tune out multiple warning screens and click through without thinking about it, he said.

If Web users had to give permission every time online services shared their data, "the number of reminders one would need every day would be in the thousands," Wolf said.

Privacy advocates called on Congress to strengthen the VPPA, not weaken it. One of the law's weaknesses is that it applies only to video rentals, said William McGeveran, a privacy advocate and professor at the University of Minnesota Law School.

"Unintended disclosure of a user's choices of books, music, films or websites can also constrain the capacity to experiment and explore ideas freely," he said.

It would be relatively simple for Netflix to offer a "play and share" button on every streaming movie, and that kind of service would satisfy the requirements of the VPPA, he added.

Once some video companies get customer permission to share movie choices, they may make it difficult to reverse that decision, McGeveran said.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.

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