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A class-action lawsuit filed last month alleges that Wal-Mart’s video recording technology at its self-service checkout kiosks collects “personal identification information” in violation of the California Song-Beverly Act Credit Card Act of 1971 (“Song-Beverly Act”).  The Song-Beverly Act, like analogous statutes in several other states, generally prohibits businesses from recording customers’ “personal identification information” as…

In two cases last week, two courts entered widely divergent rulings on the central question of the specific definition of “personally identifiable information,” or “PII,” under the Video Privacy Protection Act (“VPPA”).  The VPPA defines PII as information that “identifies a person as having [obtained a video]” from a video tape service provider (“VTSP”).

In Yershov v. Gannett, the First Circuit took a broad view of that definition, deciding that even information such as unique device IDs in connection with GPS coordinates can be PII.  In Perry v. CNN, issued just a few days before Yershov, a federal district court in Georgia took a far more limited view under Eleventh Circuit precedent, holding that MAC addresses are not PII because they are tied to devices, not specific individuals. …
Continue Reading Video Privacy Protection Act Rulings in Gannett and CNN Reach Opposite Conclusions

As protests have continued across the nation in the wake of back-to-back decisions by grand juries in Missouri and New York not to indict white police officers for their involvement in the deaths of unarmed black citizens, civil rights advocates, along with state leaders and the federal government, are exploring measures to better relationships between law enforcement and communities of color.  Just last week, the Department of Justice released a revised version of its Guidance Regarding the Use of Race by Federal Law Enforcement Agencies.  Yesterday afternoon, President Obama signed an Executive Order to create the Task Force on 21st Century Policing, and following the Michael Brown jury decision, the President proposed a three-year $263 million investment package to increase, among other things, the use of body-worn cameras.

In light of the events leading to Eric Garner’s death, however, which were captured by mobile video in their entirety, there has been skepticism about the efficacy of body-worn cameras in preventing such fatal interactions with the police and also in providing sufficient evidence to juries.  Privacy advocates, along with police officers, have expressed concern about the new technology as well.  On the one hand, body cameras have greater potential to invade privacy if they are used in homes or to film bystanders, suspects, and victims during what can be volatile and extreme encounters.  On the other hand, cameras could reduce police use of force while protecting officers from false accusations of misconduct.  Moreover, cameras could provide vital data used over time to monitor, measure, and improve departments’ institutional practices.  On balance, video cameras on police officers seem to be a good thing with short- and longer-term benefits, but only if they are deployed within a policy framework that prioritizes citizens’ privacy.
Continue Reading Looking at Police-Community Relations Through the Lens of Body-Worn Cameras

The United States District Court for the Eastern District of Michigan has allowed a putative class action under Michigan law to proceed against several magazine publishers that allegedly sold lists of their customers’ names, addresses, and subscription choices to third parties.  Earlier this week, in a case styled Halaburda v. Bauer Publishing Co., Judge Steeh of the Eastern District denied a motion to dismiss by defendants Bauer, Hearst Communications and Time, Inc., which had argued that the plaintiffs’ lacked standing to sue in federal court and that the complaint did not state a claim upon which relief could be granted. 

The plaintiffs sued under the Michigan Video Rental Privacy Act (“VRPA”), a statute that, despite its name, generally prohibits companies “engaged in the business of selling at retail, renting or lending books or other written materials, sound records, or video recordings” from disclosing “a record or other information concerning the purchase, lease, rental, or borrowing of those materials by a customer that indicates the identity of the customer.”  The plaintiffs alleged that the publisher defendants “sell[] at retail . . . written materials” and that the defendants have disclosed information about subscription choices in violation of the statute’s disclosure prohibition. 

In their motion to dismiss, the defendants argued that the plaintiffs had not sufficiently alleged standing to bring their suit because the complaint did not plead a cognizable “injury” to plaintiffs.  The court rejected this argument, holding that because the VRPA allows a plaintiff to recover statutory damages, no allegation of actual injury is necessary for standing under the U.S. Constitution or under the statute itself.  In reaching this conclusion, the court distinguished Sterk v. Best Buy Stores (N.D. Ill Oct. 17, 2012), which held that plaintiffs suing under the federal Video Privacy Protection Act (“VPPA”) had failed to establish an injury sufficient for standing.  The court noted that while the VPPA contains language requiring an actual injury (plaintiffs must be “aggrieved” to recover), the VPRA does not.

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Continue Reading Action Against Magazine Publishers for Sale of Customer Lists Allowed to Proceed

In the wake of the Boston marathon bombings and in response to the quick work of law enforcement officials who were significantly aided in their identification of the suspected bombers by videos from government- and privately owned surveillance cameras, there has been renewed public discussion regarding the privacy implications of the proliferation of security cameras. While many government officials advocate the deployment of more security cameras and law enforcement access to captured material, privacy advocates urge caution with regard to increased surveillance. In particular, privacy advocates voice concern with regard to the potential use of surveillance by law enforcement officers on “fishing expeditions” — combing through video footage to identify individuals engaged in unusual behavior, without having any other evidence that those individuals are engaged in illegal activities. Below we have highlighted a few interesting pieces discussing the issues.…

Continue Reading Boston Marathon Bombings Spark Renewed Debate Over Surveillance

Yesterday, President Obama signed into law the “Video Privacy Protection Act Amendments Act of 2012,” a law that amends the VPPA’s notoriously vague consent provision.  As originally enacted, the VPPA allowed “video tape service providers” to disclose consumers’ “personally identifiable information” (including their video viewing histories) with a consumer’s consent only if that consent were “informed, written . . . [and] given at the time the disclosure [was] sought.”  Even in the brick-and-mortar world of 1988 (when the VPPA was passed), this consent provision was confusing.  What did it mean to provide consent “at the time the disclosure [was] sought”?  “Sought” by whom (the video tape service provider, the consumer or a third party)?  Could a consumer authorize a disclosure in advance of its occurrence? 

The application of the consent provision has become even more vexed over time, as video distribution has changed radically.  Some have argued that the VPPA is broad enough to govern the disclosure of video viewing activities online, and so online video service providers have grown increasingly interested in this once-obscure statute.  Late last year, Congress acted to help clarify the consent issue.

After the jump, we provide our final analysis of the amendments. …

Continue Reading The Video Privacy Protection Act Amendments: A Final Analysis

On Friday, an Italian appeals court in Milan overturned the 2010 criminal conviction of three Google Inc. executives for violating the privacy of a disabled boy by allowing a video of students bullying him to appear on Google Video. In February 2010, a court handed down six-month prison sentences to three senior Google executives—Senior Vice…

Last week, Judge Armstrong of the Northern District of California dismissed a putative class action against Pandora alleging the Internet radio service had violated two Michigan state statutes by disclosing to third parties information about the plaintiff’s listening activity.  The plaintiff in Deacon v. Pandora Media, Inc. alleged that by (1) making publicly available his Pandora profile information and (2) posting his listening activity on Facebook, Pandora violated Michigan’s Video Rental Privacy Act (“VRPA”), Mich. Comp. Laws § 445.1711-1715, and its Consumer Protection Act (“CPA”), Mich. Comp. Laws § 445.903. 

The VRPA is among more than a dozen state analogues to the federal Video Privacy Protection Act (“VPPA”), 18 U.S.C. § 2710, which limits the ability of “video tape service providers’” to disclose information about specific video materials their customers have requested or obtained.  Although the VRPA similarly limits the ability of such entities to disclose information about their customers, the statute also applies to a broader class of entities and media.  Specifically, the VRPA provides that, absent a statutory exception:

“a person, or an employee or agent of the person, engaged in the business of selling at retail, renting, or lending books or other written materials, sound recordings, or video recordings shall not disclose to any person, other than the customer, a record or information concerning the purchase, lease, rental, or borrowing of those materials by a customer that indicates the identity of the customer.”

The plaintiff in Deacon asserted that by sharing information about his listening activities with third parties, Pandora ran afoul of this provision’s prohibition against disclosure of information about a customer’s having obtained “sound recordings.” …

Continue Reading Court Dismisses Privacy Lawsuit Against Pandora

The Digital Advertising Alliance’s Self-Regulatory Program for Online Behavioral Advertising continues to gather steam.  Last month, after the Program garnered favorable mention in the FTC’s final privacy report, a representative of the Interactive Advertising Bureau (one of the DAA’s participating organizations) announced that the Program’s Advertising Option Icon is now being served in more…

The Seventh Circuit held yesterday, in a decision written by Judge Posner, that damages are not available under the Video Privacy Protection Act (“VPPA”) for violations of the statute’s data deletion requirement, only for unlawful disclosures of video-viewing information. 

Subsection (b) of the VPPA prohibits knowing disclosure of personally identifiable information that identifies a person…