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Franken committee to examine calls to ‘modernize’ video privacy law

WASHINGTON — Netflix wants to make it easier for users to share information.

WASHINGTON — In between photos and status updates, something new has been popping up on Facebook users’ news feeds recently: the music that friends are listening to, pushed automatically to Facebook by a program called Spotify whenever a user starts listening.

Netflix is barred by law from allowing its users to share what they’re watching as easily. The company wants social media integration, and it’s asked Congress to amend a decades-old law to allow it happen.

More than 300 members of the U.S. House agreed, passing a bill in December clearing the way for Netflix users to simply check a box that will automatically share with their friends what they’ve watched online. Sen. Al Franken will hold a hearing this morning to help decide if the Senate should follow suit, asking whether its possible to make it easier for users to post their activity on social media while also maintaining the high degree of privacy currently afforded to them under the law.

The Minnesota Democrat has yet to take a position on the bill, which would amend the Video Privacy Protection Act, a law barring video rental companies from disclosing the movies their customers take out. Congress enacted it in 1988 after a newspaper published Supreme Court nominee Robert Bork’s video rental history; the law hasn’t been amended since then, even to account for changes in media technology.

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The VPPA prevents video companies from actively disclosing what their consumers are watching unless they get permission (or are forced by a search warrant or court order) on a case-by-case basis. That means Netflix users can’t simply check a box on a blanket consent form and send their viewing history to their Facebook wall, a system supporters say would free up how people share what they view, but one that makes some Internet privacy activists bristle.

“It’s really important that users can see what kind of information they’re sharing and who is getting access to it,” Electronic Frontier Foundation activism coordinator Rainey Reitman said. “It shouldn’t be a guessing game for consumers about what they are broadcasting online.”

Finding a balance

If Netflix is intent on allowing its users to share what they watch, it could do so by building a “play and share” button into its user interface, University of Minnesota law professor Bill McGeveran said. But Netflix wants a more lax, one-time consent system, one McGeveran will tell Franken’s committee on Tuesday could lead to more accidental sharing beyond what users actively decide to disclose.

Reitman offered a relatively more archaic way to share one’s viewing habits: copying and pasting links onto one’s social media profile.

But companies like Netflix and Facebook say it’s time to amend the VPPA and make it easier than that to share. Google joined the two companies in writing to Congress in October urging changes to the 24-year-old VPPA, arguing it “does not reflect the transformative changes that have occurred in how consumers access content … and how they communicate about that content.” In the past, word-of-mouth helped drive the buzz about movies, and, by extension, the video rental industry. But even though more people watch movies online and communicate by social media, federal law still bars certain sharing mechanisms that Netflix says will help drive business.

The Future of Privacy Forum, a Washington-based think-tank, argued that very point in a November op-ed for Roll Call.

“One of the most powerful ways consumers today discover online content is by learning about it online from their friends using social media,” co-chairmen Jules Polonetsky and Christopher Wolf wrote. “The antiquated law on the books is a hindrance to consumers and to the viral business models that have powered much of the recent technology economy.”

(As an aside, one of the op-ed’s main arguments in favor of the legislation  — that it would allow users to give their consent online instead of having to do so using a physical document — is a bit irrelevant. Federal law considers electronic “signatures” as valid substitutes, according to privacy law experts.)

On Dec. 6, the House of Representatives passed a bill allowing companies to give share tools to their users in the form of a one-time blanket consent agreement. The bill’s Republican author and the ranking Democrat on the House Judiciary Committee spoke in support of the legislation, especially a provision that requires the sharing consent sign-up page to be distinct from other forms on a company’s website.

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But critics say the cover-all consent provisions Netflix wants, and the bill passed by the House contains, prioritizes a business’s interests over individuals’ privacy rights.

In a letter to Congress, Marc Rotenberg, of the Electronic Privacy Information Center, argued that such provisions diminish the standard of privacy that laws like the VPPA were meant to establish.

“There is nothing in the proposal that would ‘modernize’ [the VPPA],” said Rotenberg, who is scheduled to testify before Franken’s committee. “It simply allows Netflix to post more information about the activity of its customers, whether or not the customers would choose to post such information themselves.”

Reitman said a system in which users are asked periodically to renew their sharing consent would be a more acceptable alternative, though she said Congress needs to consider the ramifications of any legislation before it becomes law.  

Along those lines, McGeveran said Congress shouldn’t rush to change the law simply to help Netflix.

“There are a lot of statutes that have more danger of being out of date and out of step with technology than this one,” he said.

Devin Henry can be reached at Follow him on Twitter: @dhenry