According to the Video Privacy and Protection Act, Netflix and Facebook Cannot be “Friends”

In the latest edition of pre-Internet era laws constricting the natural growth and flow of online enterprise, Facebook and Netflix have found their unavoidable partnership thwarted by a little known video privacy law.[1] In late July, Netflix told its shareholders that the Netflix’s “integration” [2] with Facebook would be delayed in the United States due to the Video Privacy and Protection Act (“VPPA”).[3]

The VPPA was enacted following Robert Bork’s 1987 nomination to a seat on the U.S. Supreme Court.[4] During Bork’s ultimately unsuccessful confirmation hearings, a newspaper published the candidate’s video rental history.[5] Congress did not approve of the invasive action, and voted to ban the unauthorized disclosure the following year.[6]

The VPPA criminalizes the unauthorized disclosure of personally identifiable information (i.e. video rental history) by a “video tape service provider.”[7] However, the law does permit authorized disclosure “to any person with the informed, written consent of the consumer given at the time the disclosure is sought[]” (emphasis added).[8] The dilemma Netflix and Facebook must grapple with is whether the statute allows for blanket permission when the Facebook user adds the Netflix application to his or her account, or if the informed consent must be given each and every time the user’s account is displayed on a friend’s computer. Since violators face penalties of $2,500 for each act, in addition to punitive damages and attorneys fees, it does not take a Winklevoss twin to see the risk in testing the current law.[9]

Interestingly, the VPPA does not seem to apply to all digital video streaming companies. In July, Hulu’s completed its integration with Facebook, which allows users to share their viewing history on Facebook.[10] Since Hulu does not rent, sell, or deliver physical media, it is outside the scope of the VPPA.

Help is on the way, however. In July, a bipartisan group of lawmakers in the House introduced legislation which clarifies that a user can give informed, written consent on an ongoing basis, and that the consent may be obtained via the Internet.[11] Nonetheless, the present odds that the bill will pass a House floor vote are only 17%, and only 8% in the Senate.[12] These low numbers, combined with the debt crises and an ailing economy taking up much of Congress’ attention, makes the prospect of integration between Netflix and Facebook a far off goal for the media giants. In the meantime, the Internet’s social sycophants will just have to share their video preferences the old fashioned way: via e-mail.


[1] 18 U.S.C.A. § 2710 (West).

[2] Reed Hastings and David Wells, Netflix 2Q Letter to Shareholders, (2011), http://files.shareholder.com/downloads/NFLX/1355785152x0x485532/067c1c07-f779-40f8-a1fb-20096eeb9bbc/July%20Investor%20Letter%201130am.pdf.

[3] 18 U.S.C.A. § 2710 (2006) (West).

[4] Joe Mullen, The Oddball U.S. Privacy Law That’s Keeping Netflix Away From Facebook, PAIDCONTENT (July 25, 2011, 7:16 PM), http://paidcontent.org/article/419-the-oddball-u.s.-privacy-law-thats-keeping-netflix-away-from-facebook.

[5] Id.

[6] Id.

[7] 18 U.S.C.A. § 2710 (a)(4) (West).

[8] Id. (b)(2)(B).

[9] Id. (c)(2).

[10] Dan Rowinski, Problems Resolved, Hulu and Facebook Finally Connect, READWRITEWEB (July 12, 2011, 7:46 AM), http://www.readwriteweb.com/archives/
problems_resolved_hulu_and_facebook_finally_connec.php.

[11] H.R. 2471, 112th Cong. (2011).

[12] Congressional Bills Legislative Forecasts – Current Congress, LexisNexis (Aug. 10, 2011), http://www.lexisnexis.com/lawschool/research/default.aspx?ORIGINATION_
CODE=00092&signoff=off.

Author: Kersten Roehsler

As Managing Development Editor, Kersten is in charge of organizing RCTLJ symposia and alumni outreach, in addition to assisting with the day-to-day tasks of the Journal. Also a member of the Rutgers Moot Court Board, Kersten placed in the semi-finals during the 2011 Nathan Baker Mock Trial Competition and was a co-winner for best brief. Kersten has interned with Chief Justice Stuart Rabner of the Supreme Court of New Jersey, the Mercer County Prosecutor’s Office, and most recently with JFK Health Systems’ Corporate Counsel. During her 3L year, Kersten will be a Teaching Associate for Professor Barbara Hoffman’s Legal Writing and Research course. Kersten worked in the commercial maritime industry for fourteen years prior to attending Rutgers-Newark. She has also held a seat on the board of the Marine Trades Association of New Jersey since 2003, where she is currently serving as President. Homeschooled through high school, Kersten earned her Bachelor of Science degree from New York University. Kersten intends on practicing intellectual property law, antitrust, and criminal law upon graduation.

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