Yesterday, Google/YouTube and Viacom reached a stipulation agreeing to anonymize information about most YouTube users prior to production. As YouTube's blog put it, "Viacom, MTV and other litigants have backed off their original demand for all users' viewing histories and we will not be providing that information."
As the stipulation explains, it was entered "in light of certain user privacy concerns which have been raised." EFF raised these user privacy concerns as a result of last week's decision by the U.S. District Court in New York, which granted Viacom's order to compel disclosure of YouTube's massive Logging Database. We were concerned because the order violated (1) the Video Privacy Protection Act, and (2) the First Amendment right of YouTube users to receive information anonymously.
We believe that best way to resolve this would be to appeal the court's July 1st order because it violates these statutory and constitutional standards by ordering the disclosure of personally identifiable information (including IP addresses) without requiring Viacom to meet certain requirements, including (among others) notifying YouTube users that their information is being sought and demonstrating a compelling need for that personal information. See 18 U.S.C. § 2710(b)(2)(F) (permitting the disclosure of consumer PII pursuant to a court order "upon a showing of compelling need for the information that cannot be accommodated by any other means" if the consumer has received notice and an opportunity to contest the request). See also discussions of the First Amendment right to speak and obtain information anonymously.
This stipulation between Viacom and Google voluntarily narrowing the scope of the discovery order, while a very useful first step, does not fully resolve these concerns, since it leaves the court's order on the books, and can be changed by a new agreement between the parties.
Nevertheless, the stipulation significantly reduces the user privacy concerns by replacing the user ID and IP addresses with a "unique substituted value." As we know from the AOL search history debacle, this alone is not enough to ensure privacy. However, the stipulation also provides that the parties "shall not engage in any efforts to circumvent the encryption" -- that is, they are not allowed to try and reverse-engineer real identities from the unique identifiers -- which should be sufficient if the parties abide by this promise.
In addition, the stipulation does not cover employees of Google/YouTube and Viacom. Instead:
The parties will meet and confer within 14 days of the execution of this Stipulation concerning records reflecting the business activities of the parties’ employees and agents. If the parties cannot reach agreement on this issue, any party may submit it to the court.
Employees remain protected by the VPPA and the First Amendment, meaning that the party seeking the information needs to show a "compelling need for the information that cannot be accommodated by any other means" before disclosure. While this exception is limited to "business activities," the stipulation does not explain how one would determine whether a given employee is working, or -- as happens from time to time -- looking at goofy videos on company time.
The strength of this agreement depends on the users trusting the litigants not to change the agreement later. Yesterday afternoon Viacom told us that it would agree to notify EFF before any efforts to obtain personally identifiable information (including IP addresses) associated with users' viewing and/or uploading of materials on YouTube. We expect to get a letter confirming this today.
In addition Viacom said it would provide a copy of the confidentiality agreement that governs the information YouTube will be producing, including what will happen when the case is over. In particular, we had asked Viacom to agree to the destruction, at the conclusion of the case, of any logging database records obtained by Viacom, outside counsel, or other agents. We will post this information when we get it.