Broadening the Scope of Privacy Under the Video Protection Statute

Digital technologies have dramatically changed the way we consume video content. But while we watch, we are being watched. Data collection and analytics have become integral parts of online video delivery business models. Ironically, while the technology allowing digital access to video has developed rapidly over the past few years, the law addressing the privacy of the information collected through these new technologies ' the VPPA ' has not. It is, in most part, unchanged from its enactment in 1988, when we were still largely living in an analog world.

The VPPA prohibits a “video tape service provider” from knowingly disclosing a consumer's PII to third parties absent the consumer's permission. 18 U.S.C. '2710(b)(1). At this point, it is uncontested that the term “video tape service provider” includes providers of online video. What is still subject to debate, however, is what constitutes PII for purposes of the VPPA. The statute defines PII as “information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.” 18 U.S.C. '2710(a)(3). The dramatic changes in technology and analytics associated with video delivery have made it particularly difficult for courts to apply this “pre-digital” definition to new, technologically-innovative applications. As a result, the contour of the VPPA as applied to these new contexts is still being shaped. This is illustrated by the recent decision in Yershov and its marked divergence from the rationale of prior decisions.