Laura French likes Netflix streaming video service for watching movies.

Glen Stubbe, Star Tribune

Now showing online: Your movie history

  • Article by: JIM SPENCER
  • Star Tribune
  • January 31, 2012 - 11:04 PM

WASHINGTON -- You might not mind if all your Facebook friends knew you watched movies like "The Godfather." But would you want everyone to know you watched "Yoga for Health: Depression and Gastrointestinal Disorders"?

Sen. Al Franken, D-Minn., used those examples Tuesday to illustrate a growing debate over how much control people should have over their movie viewing histories. The question is whether companies such as Netflix and Facebook should have to ask every time they share someone's movie data, or whether one-time blanket permission is good enough.

It's the latest in a series of debates on Capitol Hill about the collision of technology and personal information. So far, the battle has played out in everything from smartphones that track users' geographic movements to Google's recent decision to collect vast amounts of information about users without giving them the right to opt out.

Now comes the movies. Since 1988, when a video store gave a reporter the rental history of then-U.S. Supreme Court nominee Robert Bork, a law known as the Video Privacy Protection Act has required companies to get case-by-case approvals before they can share consumers' viewing histories.

Some believe that's still the best approach. "A one-time check-off that has the effect of an all-time surrender of privacy does not seem to me the best course for consumers," said Sen. Pat Leahy, D-Vt., who helped author the 1988 law.

But three decades later, Leahy and others in Congress must address social networks that share intensely personal details instantaneously and that were the stuff of science fiction in 1988. In the case of movies, the video privacy law contrasts with programs that can share individual music preferences through programs such as Spotify and individual literary choices with electronic readers such as the Kindle.

On one side of the discussion stand companies like Netflix and Facebook, which say they can better serve customers by getting blanket permission to share an individual's movie data with friends. Netflix and Facebook have established such an arrangement outside the United States, but say they can't operate the same way in this country because it might violate the Video Privacy Act.

Against blanket permission

On the other side of the argument are people like Franken and University of Minnesota law professor Bill McGeveran. A privacy expert, McGeveran appeared Tuesday at a hearing of the Senate Subcommittee on Privacy, Technology and the Law to explain why specific permission to disclose information remains the best way for individuals to protect themselves from unintended intrusions into their personal lives.

"Companies that are implementing social media strategies want us to disclose as much information as possible," McGeveran said in an interview. "They want it to be as easy as possible for you to share as much as possible. It's better for them. So they are concerned that if people are asked for genuine consent every time, they [the companies] might not get [permission] as often."

Franken, who chaired the subcommittee hearing, cited the example of a person watching DVDs or streaming videos about marriage counseling or parents watching documentaries about autism or developmental disabilities. They might want to do so "without broadcasting that to the world," he said.

Netflix general counsel David Hyman said his company does not want streaming videos on computers covered under the existing video privacy law, which was written before companies perfected streaming technology. McGeveran insists that the 1988 law can be read to include all new video technologies and could be adapted to do so absolutely by slightly amending the law's original language.

Companies like Netflix and Facebook prefer a bill passed in the House of Representatives that gives suppliers of video material the right to get one-time blanket permission to share a customer's video history. The Senate seems likely to amend the House bill, if not vote it down and replace it.

McGeveran presented a potential alternative. He called for an electronic consent procedure that allows viewers to click a "share" or "not share" button on their computer screens before they watch a video.

Sen. Tom Coburn, R-Okla., the ranking minority member of the subcommittee, sounded interested in the option.

"I don't see a big difference from granting one click at a time and blanket consent," he said. "What's wrong with a reminder that you're giving your privacy away?"

Jim Spencer • 202-408-2752

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