Video Privacy Protection Act of 1988

After a list of Robert Bork’s video rentals was published in a newspaper during his failed Supreme Court confirmation hearings in 1988, Congress took swift action and passed the Video Privacy Protection Act of 1988 (VPPA), 18 U.S.C. 62710. The act prohibits videotape service providers from knowingly disclosing information regarding a consumer’s rental or purchase of “prerecorded videocassette tapes or similar audiovisual materials.” Disclosure of the names and addresses of customers is permissible under the act if the customer is given the chance to prevent such disclosure (the opportunity to “opt out”). Disclosure of rental or purchase habits is permissible if the customer consents; in such cases, it is not sufficient for the videotape service provider to obtain consent via a membership sign-up form or some other document that was signed by the customer prior to the request for disclosure. Rather, the customer’s consent must be given at the time the disclosure is requested.
An important exception to these general prohibitions on disclosure is that videotape service providers may disclose the subject matter of a customer’s videos if it is for the exclusive use of marketing goods and services directly to the consumer. In other words, the renting habits of customers may be shared with other companies for marketing purposes.
Videotape service providers may also disclose customer records to law enforcement officials pursuant to a warrant, a grand jury subpoena, or a court order. If law enforcement officials seek disclosure pursuant to a court order, they are required to give the customer prior notice; moreover, they must show that there is probable cause to believe that the information they seek to obtain is relevant to a law enforcement inquiry.
In civil proceedings where a person seeks the disclosure of video rental or purchase information by court order, the individual whose information is at issue is afforded certain protections: he or she must be given reasonable notice by the person seeking disclosure and must be given an opportunity to appear in court to challenge that person’s claim.
All records pertaining to a customer’s purchase or rental habits generally must be destroyed one year after the information is no longer necessary for the purpose for which it was collected. This has been construed to mean one year after a customer terminates his or her account. Individuals whose privacy has been violated by transgression of the act may bring a federal civil action for damages. However, prevailing in such an action would likely prove difficult because the customer must show that the videotape service provider knowingly made improper disclosures.
Moreover, because the remedy for violations of the act is a private remedy, customers must self-police the privacy practices of videotape service providers. Such self-policing is difficult because there is no provision in the VPPA that requires videotape service providers to disclose information regarding their handling of a customer’s information if a customer makes a request for such information. However, a number of states have passed videotape privacy statutes that are more stringent than the federal VPPA.
Although it is unclear whether the act applies to DVDs and video games, most commentators agree that the language of the statute extends the act’s scope to both DVDs and video games. An unsettled question is how the VPPA interacts with the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), which allows law enforcement officials to obtain individuals’ purchasing information if it is “in the course of an ongoing investigation”; this represents a much lower standard than the requirement for issuance of a warrant: probable cause.