How a failed Supreme Court bid is still causing headaches for Hulu and Netflix

December 27, 2013

Judge Robert Bork (James K. W. Atherton/The Washington Post)

A San Francisco Judge rejected a bid to dismiss a lawsuit against video streaming company Hulu that alleges that the company shared their viewing habits with third parties in violation of the Video Privacy Protection Act (VPPA) this week. But Hulu is not the only online service that has had issues with the 1988 law — Netflix has had similar run-ins. And they can all blame one enterprising reporter and a failed Supreme Court nomination.

In 1987 Justice Robert Bork, then a Judge of the United States Court of Appeals for the District of Columbia Circuit, was nominated for the Supreme Court. Bork was a strict constitutionalist — and on the subject of privacy, he generally believed that Americans only were guaranteed the privacy protections specifically conferred by legislation. Coincidentally, Bork happened to frequent Potomac Video, the same video rental store as then-Washington City Paper writer Michael Dolan. And after finding out their shared retail behavior, Dolan asked the assistant manager on duty for a look at Bork's rental history.

He got the full xeroxed list.

Its contents were, by his account, pretty boring: A lot of Hitchcock and British costume dramas. In fact, Dolan wrote that the most surprising thing about his rental history was the 146 tapes he checked out in less than two years — making him ideal for the job of "Supreme Couch Potato."

That gleefully irreverent tone of Dolan's report and the fact that he got the list at all became a much bigger deal than the content of Bork's rental history — eventually resulting in the passage of the VPPA in 1988. As for Bork, he didn't get his seat on the Supreme Court. The Senate voted against his nomination by a  58 to 42 margin. His video rental history probably didn't hurt his nomination. But he was badly hurt by an aggressive opposition campaign by Democrats in the Senate. And his firing of a special prosecutor investigating the Watergate scandal on President Nixon's order while acting head of the Justice Department also didn't help.

But while Bork never made it to the highest court in the land, the video privacy law enacted as a result of his nomination has increasingly become a thorn in the side of online video rental and streaming services.

Blockbuster, the video rental chain that is now virtually defunct, was hit with a class-action suit in 2008 for allegedly sharing rental information with Facebook as part of their much-maligned Beacon program. Streaming giant Netflix also faced a class-action suit in 2009 for their release of customer information as part of a contest to improve their recommendation system — although the information was "anonymized" researchers were still able to identify "several NetFlix users by comparing their 'anonymous' reviews in the Netflix data to ones posted on the Internet Movie Database website." When Netflix originally rolled out Facebook sharing integration in 2011, they had to exclude the United States due to the VPPA and urged their users to contact their legislators about legislation amending the law in a blog post.

Netflix did successfully lobby to get the law amended to allow that social integration earlier this year — and rolled out the sharing features domestically in March. But, as evidenced by Hulu's ongoing legal troubles, the VPPA continues to be provide some significant privacy protections for users — and headaches for online entertainment companies.

Correction: An earlier version of this post described Justice Bork as a D.C. District Court Judge in 1987, rather than Judge of the United States Court of Appeals for the District of Columbia Circuit. We regret the error. 

Andrea Peterson covers technology policy for The Washington Post, with an emphasis on cybersecurity, consumer privacy, transparency, surveillance and open government.
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