How Washington’s last remaining video rental store changed the course of privacy law


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

After 33 years, Potomac Video is closing its doors. It was the last remaining brick-and-mortar video rental store in the District — where big chains and local entries alike have disappeared since the dawn of the streaming era — and one of the first when it opened in 1981.  But even as the local retail chain lets loose its dying moan, Potomac Video can still claim credit for changing the face of consumer privacy thanks to its role in the creation of the Video Privacy Protection Act, or VPPA.

It all started with a Supreme Court nomination and one reporter who wanted to know what a nominee had been watching.

In 1987, President Ronald Reagan nominated Robert Bork, then a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to the Supreme Court. Bork was a pretty controversial fellow — he had ties to the Watergate scandal and faced an aggressive wave of criticism from Democrats in the Senate.

But it was Bork's position on privacy that caused Michael Dolan, who was then a writer with the Washington City Paper, to start looking into his video rental records. You see, Bork was a strict constitutionalist and generally did not believe that individuals were guaranteed privacy protections beyond those specifically outlined in legislation.

So one day, Dolan walked into Potomac Video and asked the manager on duty whether he could have a peek at Bork's rental history — something that no specific legislation at the time barred. He walked out with a photocopy revealing the 146 tapes the judge had checked out in the past two years.

Other than the sheer number of tapes, Dolan didn't uncover anything too shocking. (Bork appears to have had a special taste for Hitchcock and costume dramas.) But Dolan's acidic prose and the fact that he was able to get the records at all became a huge story, prompting Congress to pass the VPPA in 1988 — after Bork's nomination had been voted down 58 to 42.

Flash forward 20 years, that same legislation became a thorn in the side of the video rental industry as it shifted online. In 2008, the now-all-but-dead Blockbuster faced a class action suit alleging that it shared rental information with Facebook's online advertising project Beacon.  Netflix, too, faced a suit in 2009 about its release of "anonymized" customer data as part of a context for improving its recommendation engine that may not have been quite so anonymous.

Netflix was so wary of being on the wrong side of the law that it excluded the United States when it first rolled out Facebook sharing in 2011 — and urged users to lobby their legislators about changing the law. The streaming video did, ultimately, win that battle: The law was amended early last year, and Netflix extended Facebook sharing to U.S. users in March 2013.

But even with  the changes, the VPPA continues to provide consumers some leeway to keep their video-viewing habits private. Hulu, for instance, is embroiled in a years-long class action suit related to alleged violations. And it's all because the assistant manager working at Potomac Video didn't bat an eyelash when Dolan wanted to see Bork's rental history.

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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