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  As originally enacted, the VPPA allowed “video tape service providers” to disclose consumers’ “personally identifiable information” (including their video viewing histories) with a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. 

The Amendments tell us the following things about consent under the VPPA: 

  1. Consent can be obtained “through an electronic means using the Internet.”  Although there always were strong arguments that the VPPA’s requirement that consent be “written” could have been satisfied through an electronic manifestation of consent (particularly for electronically delivered video content), the Amendment puts to rest any confusion about this.
  2. Consent can be “given at the time the disclosure is sought” or “given in advance for a set period of time.”  A consumer can now agree upfront to allow the provider to disclose personally identifiable information on an ongoing basis for up to two years or until the user withdraws her consent
  3. A consumer must be able to withdraw her consent.  The consumer must have the opportunity to withdraw consent either on “on a case-by-case basis” or “from ongoing disclosures.”  Withdrawal on a “case-by-case basis” presumably means that a consumer would be given the opportunity to prevent (i.e., opt out of) a particular disclosure at the time the disclosure is made. 
  4. Consent cannot be obtained through disclosures in a “form setting forth other legal or financial obligations of the consumer.”  This may be the vaguest of the new provisions.  Some may argue that the provision precludes securing consent through a privacy policy or terms of service. 

The VPPA may, of course, continue to be interpreted if additional lawsuits continue the past pattern of plaintiffs attempting to stretch the law well beyond its original purpose.  But these amendments have, for the time being, provided much-needed clarity to an increasingly important statute.