Focusing public attention on emerging privacy and civil liberties issues

Video Privacy Protection Act

Introduction

The Video Privacy Protection Act of 1988 (codified at 18 U.S.C. § 2710 (2002)) was passed in reaction to the disclosure of Supreme Court nominee Robert Bork's video rental records in a newspaper. The Act is not often invoked, but stands as one of the strongest protections of consumer privacy against a specific form of data collection. Generally, it prevents disclosure of personally identifiable rental records of "prerecorded video cassette tapes or similar audio visual material." The Act has several important provisions, including:

  • A general ban on the disclosure of personally identifiable rental information unless the consumer consents specifically and in writing.
  • Disclosure to police officers only with a valid warrant or court order.
  • Disclosure of "genre preferences" along with names and addresses for marketing, but allowing customers to opt out.
  • Exclusion of evidence acquired in violation of the Act
  • Civil remedies, including possible punitive damages and attorneys fees, not less than $2500.
  • A requirement that video stores destroy rental records no longer than one year after an account is terminated.
  • The VPPA does not preempt state law. That is, states are free to enact broader protections for individuals' records.

Issues remain about the applicability of the Act to other rental records, including DVDs and video games, which are commonly rented by the same stores that rent video cassettes. The plain language of the Act would indicate that it applies broadly to all such records, but no cases have, at this point, interpreted the language.

Also at issue is the interaction of the VPPA with the recent Patriot Act, which expanded law enforcement powers to procure information such as library records and individual purchasing records "in the course of an ongoing investigation" (a lower standard than the traditional warrant). So far, no cases or stories have surfaced about use of the Patriot Act to investigate video rental records, but it seems likely that federal authorities would assert their power to do so.

Many states have enacted laws providing greater protections than the federal VPPA. Video rentals in Connecticut and Maryland, for example, are considered confidential, and cannot be sold. California, Delaware, Iowa, Louisiana, New York, and Rhode Island have also enacted video privacy laws. Michigan's video privacy law goes beyond the VPPA, and protects records of book purchases, rentals, and borrowing as well.

History

The origin of the VPPA was the ill-fated nomination hearings for Judge Robert Bork in 1988. Bork's Washington, DC-area video store gave Bork's rental records to a reporter for the Washington City Paper, a local newspaper. The paper published the records likely in an attempt to embarrass Bork, but succeeded more in scaring Congress into enacting protective legislation. The bill was drafted by Senator Leahy, who noted during the floor debate that new privacy protections are necessary in "an era of interactive television cables, the growth of computer checking and check-out counters, of security systems and telephones, all lodged together in computers...." S. Rep. No. 100-599, 100th Cong., 2d Sess. at 6 (1988).

According to congressional sources, the language of the bill changed somewhat during debate due to pressure from marketers and other groups. For instance, the original bill included personally identifiable magazine subscription information, but this provision was struck by lobbying from direct marketers and law enforcement groups.

Cases

Dirkes v. Borough of Runnemede, 939 F. Supp. 235 (D.N.J. 1996).

In the process of an internal affairs investigation of Officer Dirkes, the investigator asked for and received the list of the Plaintiff's video rental records from a clerk at the local video store. The investigating officer failed to get a warrant, subpoena, or court order, and the employee did not question the request. Dirkes sued for violation of his rights under the VPPA.

The court identified the purpose of the law as protecting privacy in an era of new technology. According to the law, the court noted, Dirkes could sue either the video store for unauthorized release of his information, or the city for using the video information as part of the internal investigation. The court's broad reading of the statute established that any party using video records wrongly obtained is subject to liability under the VPPA.

Camfield v. City of Oklahoma City, 248 F.3d 1214 (10th Cir. 2001) (the Tin Drum case).

In 1997, an Oklahoma citizen complained that the academy award-winning German movie The Tin Drum contained child pornography and therefore violated Oklahoma law. The police took the film to a local judge, who informally viewed it and agreed that it was probably child porn. The police subsequently went to neighborhood video stores and removed all copies of The Tin Drum, and obtained, without a warrant, the names of those who were currently renting it. One copy had been rented by a local ACLU employee who got wind of the impending seizure and wanted to see if the movie was really objectionable. Police came to Mr. Camfield's house and asked for the cassette, which he handed over after some discussion of "the artistic merits of the movie."

The court found that the city violated Camfield's rights under the VPPA by obtaining his rental records without a court order or warrant. He was awarded the statutory minimum of $2500 and a victory for civil liberties.

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