Netflix is backing a bill in Congress that would amend the Video Privacy Protection Act, a 1988 law that requires a video services company to get a customer’s written consent when it seeks to disclose that client’s personal information, such as rental history. The new bill, passed by the House last Tuesday, would allow consumers to give one-time blanket consent online for a company to share their viewing habits continuously.
In a social networking ecosystem where sharing information about personal activities is already ubiquitous, the bill may seem to be a no-brainer. After all, Foursquare already shares its members’ locations. Spotify already shares the titles of songs its members are playing with their Facebook cohorts. And Facebook publishes links to articles that its members’ friends have read. So, Netflix executives argue, it’s high time for a bill that would give members of video services the same option to divulge their personal details.
“It really is meant to empower the consumer to be able to share with their friends,” says David Hyman, the general counsel of Netflix. He says the bill simply updates an outmoded law so that it matches the way we live now. “It really kind of levels the playing field in social media.”
But some privacy scholars and advocates are warning that the bill actually diminishes a person’s ability to select what to share — and with whom — on a case-by-case basis. If the Senate passes the bill as currently written, they say, the revised law would undermine consumers’ control over information collected about them even as it empowers companies to create and share more detailed customer profiles. Netflix isn’t lobbying for a mere amendment, they argue; it wants Congress to dismantle a gold standard among privacy statutes.
“They are not trying to modernize the law,” says Marc Rotenberg, executive director of the Electronic Privacy Information Center, a public interest research group in Washington. “They are trying to gut the law.” At stake, he argues, is not the ostensible sharing of a person’s video viewing history, but rather the larger issue of meaningful consent.
The Video Privacy Protection Act came about under unusual circumstances.
In 1987, the Washington City Paper, a weekly newspaper, published the video rental records of Judge Robert H. Bork, who at the time was a nominee to the Supreme Court. One of the paper’s reporters had obtained the records from Potomac Video, a local rental store. Judge Bork’s choice of movies — he rented a number of classic feature films starring Cary Grant — may have seemed innocuous.
But the disclosure of Judge Bork’s cultural consumption so alarmed Congress that it quickly passed a law giving individuals the power to consent to have their records shared. The statute, nicknamed the “Bork law,” also made video services companies liable for damages if they divulged consumers’ records outside the course of ordinary business.
To proponents of the new amendment, the law looks like a relic. Members of social networks today, they say, don’t want to be asked, each time they’ve watched another installment of “The Office,” whether that information can be shared with their friends.
People prefer frictionless sharing, a convenience hindered by the current law, says Christopher Wolf, a lawyer who is co-chairman of the Future of Privacy Forum, a Washington research group that receives financing from Google, Facebook and other digital media companies.
Moreover, Mr. Wolf says, the law restricts video services that seek to integrate with social networks like Facebook even as some music sites have already introduced sharing.
“Companies should not be exposed to hundreds of millions in damages just because particular hoops weren’t jumped through,” he says. “If people can share what they are listening to on Spotify, why shouldn’t they be able to share what videos they are watching?”
Still, video viewing remains a delicate area for many people because movie choices may open a window to a person’s religious or sexual preferences.
“Do you want your conservative friends to know that you watched a hyperviolent “Saw” movie or movies about the gay experience like ‘Brokeback Mountain’?” says Kevin Bankston, a senior staff lawyer at the Electronic Frontier Foundation, a digital civil rights group in San Francisco. “Do you want your liberal friends to know you watch an enormous amount of religious movies?”
Any amendment, he argues, should preserve a person’s ability to choose what to share, case by case, rather than ceding control by giving a general waiver to a company.
“You should have the option to decide what goes on your wall,” he says.
But Netflix argues that the marketplace should dictate consumers’ level of control. Mr. Hyman, Netflix’s general counsel, says the bill lets people opt in to continual sharing by giving their affirmative consent — or to choose not to share at all.
Netflix, he adds, has already introduced a feature for its subscribers in Canada and Latin America who want to share the movies and TV shows they watch with their friends on the video site and on Facebook. Netflix gives these subscribers a choice of opting out of sharing an individual film or show.
“If it is determined that consumers want more control over what they share on a granular basis,” Mr. Hyman says, “you will see that being offered as opposed to it being legislated.”
To advance its agenda, Netflix has increased its presence in Washington. It spent $325,000 on lobbying in the first three quarters of this year, versus $30,000 in the same period in 2009, according to a report from the Center for Responsive Politics, a research group that tracks political spending.
Last week, some legislators complained that proponents of the bill rushed it through the House without a hearing or a full-scale debate. The bill is likely to face tougher scrutiny in the Senate.
Privacy advocates say they expect Senator Al Franken, the Minnesota Democrat who is chairman of the privacy, technology and law subcommittee of the Senate Judiciary Committee, to hold a hearing on the amendment early next year. And the Judiciary Committee, which has often opposed amending laws for the primary benefit of one company, may decide to strengthen the Bork law — by clarifying that it covers online video streaming, not just the old-fashioned rental of physical videos. (Hulu, a streaming video service, has already introduced a sharing option on Facebook.)
In an interview last week, Judge Bork, a distinguished fellow at the Hudson Institute, said he was glad Congress had remedied the unauthorized disclosure of video rental records with a law. But, he added, the amendment seemed to call for further public discussion.
“If you are going to enact change to a statute,” Judge Bork said, “you have to debate the question of whether the costs outweigh the benefits.”
E-mail: slipstream@nytimes.com.
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