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Chairman Franken Holds Hearing on Updating Video Privacy Law for 21st Century

Senator Questions U of M Law Professor, Netflix Executive on Importance of Protecting Consumer Privacy as Video Technology Evolves

Tuesday, January 31, 2012

Today, U.S. Sen. Al Franken (D-Minn.), Chairman of the Judiciary Subcommittee on Privacy, Technology, and the Law, held a hearing to examine whether the Video Privacy Protection Act—which protects the video viewing records of consumers—needs to be updated to protect consumer privacy as consumers increasingly watch videos on the web.
 
At the hearing, entitled "The Video Privacy Protection Act: Protecting Viewer Privacy in the 21st Century," Sen. Franken questioned Netflix General Counsel David Hyman, Professor William McGeveran of the University of Minnesota School of Law, and other privacy and technology experts. Sen. Franken will use the testimony from today's hearing when he determines how to revise legislation to protect the privacy of consumers who use Netflix and other web-based video services.
 
"If someone wants to share what they watch, I want them to be able to do so,"said Chairman Franken. "But I want to make sure that consumers have the right to easily control who finds out what they watch—and who doesn’t.  The Video Privacy Protection Act guarantees them that right.  I want to make sure we protect that right for another quarter of a century."
 
Sen. Franken also expressed reservations about a bill that recently passed the House that would effectively eliminate users’ ability to tell their video companies what they can and cannot share on a case by case basis. Sen. Tom Coburn (R-Okla.) expressed similar concerns during the hearing.
 
The full text of Sen. Franken's opening statement is below:
 
 
As Prepared for Delivery
 
Sen. Franken's Opening Statement
"The Video Privacy Protection Act: Protecting Viewer Privacy in the 21st Century"
 
This hearing will come to order.  It’s my pleasure to welcome all of you to the third hearing of the Senate Judiciary Subcommittee on Privacy, Technology and the Law.   Now, before we start, I just want to applaud the Supreme Court for their decision in the Jones case.  It was the right result, but it was also a call to action to Congress—because while law enforcement now needs a warrant to track your location, all of the companies that get your location information almost every day—your smartphone company, your in-car navigation company, and even the apps on your phone—are still in most cases free to give out your location to whomever they want as long as it isn’t the government.  I have a bill to fix that and I think we need to take action on it right away.  
But today’s hearing will focus on the Video Privacy Protection Act, a powerful privacy law that was written and passed by Chairman Leahy and Ranking Member Grassley of the full Judiciary Committee.  I want to use this hearing to make sure everyone knows what the Video Privacy Protection Act is and how it protects our privacy and civil liberties.  I want to look at how we might update the Video Privacy Protection Act for the 21st century.  And I want to look at a specific bill to amend the law that just passed the House.
 
Twenty-five years ago, Judge Robert Bork was before the full Senate Judiciary Committee as a nominee to the Supreme Court.  During the hearing, a local reporter asked Judge Bork’s video store for a  record of the movies he had watched.  There was no law against it, so the video store gave him the records and the reporter wrote a story about them.  
The Senate Judiciary Committee was split on Judge Bork’s nomination.  But it was unanimous in its outrage over what had happened.  There wasn’t anything particularly memorable about Judge Bork’s movies.  In fact, they consisted primarily of mysteries and caper films.  But that wasn’t the point.  The point was that the movies we choose to watch are our business and not anyone else’s.  Soon after this, Senator Leahy and Senator Grassley introduced the Video Privacy Protection Act.   The bill was reported out of committee unanimously—and passed through the Senate and the House on voice votes. 
 
There has been a renewed interest in the Video Privacy Protection Act in recent months, and I think that’s great.  But I’ve seen a lot of people talking about the law like it was some kind of relic—something that is so outdated that it doesn’t make any sense anymore.  So I want to take a moment to explain in really simple terms what this law does for consumers. 
Thanks to the Video Privacy Protection Act, your video company can’t tell other people what you are watching unless you give them permission to do that.  Now, when Chairman Leahy and Senator Grassley wrote the law, they were really smart about it.  They didn’t just say that a video company has to at some point get you to sign some form that says “I’m okay with you telling people what I watch.”  No, they said that every time a video company wants to tell people what you watch, they have to check with you first. 
 
And that’s an important right, because you probably don’t care if people know you watched a summer blockbuster.  But if you’re having trouble with your marriage and you’re trying to get help, you might not want your friends and relatives to find out that you’ve been watching videos about marriage counseling or divorce.  I also think that parents of a young child may want to watch documentaries about autism or developmental disabilities without broadcasting that to the world. 
This is really sensitive stuff.  And that’s why the Video Privacy Protection Act is so important—it gives you the right to tell your video company what can be shared and what can’t.
 
The Video Privacy Protection Act also protects your privacy against the government.  Under the law, if the government wants to get your viewing records, it has to get a warrant, a grand jury subpoena,  or a court order. This came up in one famous case where a local police department thought that the 1979 movie The Tin Drum was obscene.  Mind you, this was a movie about what happened in Nazi Germany before World War II.  It won an Oscar for Best Foreign Film.  But the police department went out and seized a list of everyone who had the movie and then drove around confiscating every copy.  And in that case, the ACLU chapter in the Ranking Member’s state of Oklahoma used the Video Privacy Protection Act to stop that.  
Without objection, I will add to the record a letter from the American Civil Liberties Union that stresses that this is a civil liberties law, too—not just a consumer protection law. 
 
The Video Privacy Protection Act also makes sure that video companies don’t keep information about what you’ve watched after that information is no longer needed.   This protects that information from getting lost, stolen, or hacked.  Finally, the law gives people the right to have their day in court to defend their rights if a video company or the government violates these rights. 
 
So the Video Privacy Protection Act a really important law for consumer privacy and for civil liberties.  But things do change in a quarter century, and I’m calling this hearing to see if we can update this law so it can protect our privacy for another 25 years.
One way we need to update this law is to make sure that it is keeping up with technology.  It used to be that if you wanted to watch a video, you had to go to the video store or wait for it in the mail.  Now you can stream it directly to your computer in seconds. 
 
Streaming is the future of video.  But no judge has ever decided whether or not the Video Privacy Protection Act covers streaming video companies.  I think it’s clear that the law does cover new technologies like streaming—because it doesn’t just cover “prerecorded video cassette tapes”; it also covers “similar audio visual materials.”  But I do think there is a real risk that a judge might look at this law and say “it doesn’t cover streaming—it just covers DVDs and VHS tapes and things like that.”  I don’t want to leave the future of video privacy up to a judge.  So if we’re updating the Video Privacy Protection Act, we need to confirm that it covers streaming video technology. 
I also know that courts are split on whether or not people have the right to enforce the data retention provision. That might need to be clarified, too.  Those are just two ideas.  I’m sure the witnesses here will have other suggestions.  My goal here is to lay the groundwork for a fair and comprehensive update of the entirety of this law.
 
Before I close, I want to touch on H.R. 2471, a recently-passed House bill that would modify one aspect of the Video Privacy Protection Act.   H.R. 2471 lets a video company ask for your consent to disclose the videos you watch once, up front, instead of asking for consent on a case-by-case basis.  Netflix has strongly supported this bill and has explained that it will make it easier for them to integrate into social media sites like Facebook.  I’m pleased to report that Netflix is here with us today to talk about their support.
 
I want to be honest: based on what I’ve seen so far, I have some reservations about H.R. 2471.  First, it looks like the bill will basically undo users’ ability to give case-by-case permission to a video company on what it can tell people and what it can’t.  And that worries me—because case-by-case consent is a really good thing.  It’s a really good thing that people can easily tell their video company—“sure, go ahead and tell people I watched The Godfather, but no, don’t tell them I watched, Yoga for Health: Depression and Gastrointestinal Problems.”  And yes, for the record, that is a real title in the Netflix catalogue.  And by the way, an excellent film. 
 
So I’m worried that H.R. 2471 will eliminate our ability to give case-by-case consent.  But I’m also worried that this bill will make these changes without confirming that streaming is covered or doing anything else to strengthen the law for consumers.  Finally, I want to know how this bill will affect the Video Privacy Protection Act’s protections against government snooping into our video records.
But I’m here to listen and learn more about this—and this is a hearing on all proposals to update the Video Privacy Protection Act, not just H.R. 2471.  And we have two great panels for that.  But before I introduce them, I’ll turn the floor over to my friend the Ranking Member, Senator Coburn, for his opening remarks.

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