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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

House Approves VPPA Amendment

Posted in Advertising & Marketing, Online, Social Media

Earlier today, the House of Representatives approved an amendment to the Video Privacy Protection Act (VPPA) (H.R. 2471) that would clarify certain ambiguities in the 1988 law in light of technological changes in the marketplace.  In his remarks on the House floor, Rep. Bob Goodlatte (R-VA) – the primary author of H.R. 2471– explained that the amendment will facilitate the sharing of video usage information on social media networks. 

During a debate on the legislation, Rep. Melvin Watt (D-NC) opposed the bill as he did in the committee markup, expressing concern about the adequacy of one-time consent to the sharing of information on dynamic social media sites.  He emphasized the sensitivity of video usage information and expressed concerns about whether Congress has given sufficient thought to the impact of H.R. 2471 on state video privacy laws.  Rep. Watt also questioned the propriety of Congress acting in light of a number of pending private law suits under the VPPA.  Rep. John Conyers, Jr. (D-MI) lent his support to H.R. 2471, but stated that he would have preferred the bill require consumers to renew their consent periodically.

Under the VPPA, which was passed long before the Internet was widely available, “video tape service providers” generally are not permitted to share a consumer’s video usage information without “the informed, written consent of the consumer given at the time the disclosure is sought.”  If enacted into law, H.R. 2471 would clarify this limitation in the context of online distribution in the following ways:

  • H.R. 2471 makes clear that “informed, written consent” may be obtained electronically using the Internet.  An amendment that the House Judiciary Committee adopted in October requires that such consent be obtained distinctly and separate from any other legal or financial terms that are presented to consumers.  Rep. Goodlatte stated in his remarks on the House floor that the bill maintains an opt-in consent requirement.
  • It also addresses what it means that consent must be obtained from a consumer “at the time the disclosure is sought.”  If adopted, it would make clear that consumers may provide their consent to information-sharing in advance of a disclosure, so long as such consent may be withdrawn by the consumer.

Congress passed the VPPA, which protects the privacy of certain video records, in 1988 in the wake of a scandal concerning the release of videotape rentals for then-Supreme Court nominee Robert Bork. The VPPA has not been amended since passage.