What Your “Queue” is Saying About You

Matthew Robinson-Loffler, Government Law Review member

      Our secrets, great or small, can now without our knowledge hurtle around the globe at the speed of light, preserved indefinitely for future recall in the electronic limbo of computer memories.  These technological and economic changes in turn have made legal barriers more essential to the preservation of our privacy.[1]

 Introduction:

          Did Netflix “out” an Ohio mother?[2]  According to a recent complaint filed in Federal Court for the Northern District of California, the rental company provided data containing the subscriber’s viewing habits and preferences, alleging the company did not sufficiently anonymize the information.  While many people expect to take abuse from friends and family regarding their taste in entertainment—“You’ve watched On Deadly Ground how many times?”—very few expect that information to be shared with the community at large.

          Doe v. Netflix, alleges the DVD rental company, regulated as ‘video tape service provider’ under the Video Protection Privacy Act[3] (VPPA) disclosed the private information of its subscribers, in violation of the VPPA, allowing contestants, and anyone else who may have had access to the data, to de-anonymize the information and identify specific members.  Doe, an Ohio resident is suing individually, alongside three other plaintiffs; each seeking to represent a U.S. Resident class; a U.S. Resident and California Resident class; and a U.S. Injunctive Class.[4]

I. The Law

          In 1988, Congress passed the VPPA in response to the leaking of Supreme Court Nominee Robert Bork’s video rental history to a Washington newspaper.[5]  The VPPA prohibits “video tape service provider[s]” from “disclos[ing] to any person, personally identifiable information concerning any consumer . . . .”[6]  Personally identifiable information “includes information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.”[7]  Any individual whose personally identifiable information has been disclosed in a way not permitted by the act may recover “actual damages but not less than liquidated damages in an amount of $2500; punitive damages; reasonable attorney’s fees and other litigation costs reasonably incurred; and such other preliminary and equitable relief as the court determines to be appropriate.”[8]

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