Monday’s stipulation between YouTube and Viacom did not “extend to records reflecting the business activities of the parties’ employees and agents.” Instead, as we noted yesterday:
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.
Today we expand upon why the Video Privacy Protection Act protects the records showing the video viewing habits of Google/Youtube and Viacom employees.
As an initial matter, the VPPA covers the records at issue. As we discussed in our first post on the YouTube data controversy, the Act refers to “prerecorded video cassette tapes or similar audio visual materials.” The legislative history shows that "similar audio visual materials" is broad--the Senate Report noted that the term includes "laser disks, open-reel movies, or CDI technology." See S. Rep. No. 100-599, 100th Cong., 2d Sess, reprinted at 1988 U.S.C.C.A.N. 4342-1. This is not an exhaustive list. As a federal court noted with respect to the civil discovery subsection:
… in construing the scope of the Act, this Court must strive to protect this aspect of an individual's right to privacy in the face of technological innovations that threaten this fundamental right.
Dirkes v. Borough of Runnemede, 936 F.Supp. 235 (D.N.J. 1996). Accordingly, a YouTube video qualifies as audio visual material under the VPPA.
Furthermore, YouTube is a “video tape service provider” under the Act, because it is “engaged in the business [of] delivery of … audio visual materials.” The VPPA protects “personally identifiable information,” which is defined to include “information which identifies a person as having requested or obtained specific video materials or services.” While the parties disputed whether IP numbers or user IDs were PII, the portion of the Logging Database showing the viewing habits of particular employees is doubtless PII under the Act.
The VPPA extends its protections to “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” To the extent that employees have signed up for a YouTube account and received a YouTube user ID, there is no doubt they are subscribers. And even if there are employees without YouTube user IDs, they could well be "renters" or "purchasers" under the Act. The courts instruct us to interpret the VPPA broadly, and courts have, in other contexts, construed similar terms (like "sale") to include free distribution. Indeed, part of Viacom's overall argument is that YouTube received a financial benefit as a result of video views.
As explained by the Senate Report that accompanied the bill, the VPPA:
prohibits video service providers from disclosing personally identifiable information except in certain, limited circumstances. As a general rule, personally identifiable information may only be disclosed with the prior written consent of the individual.
S. Rep. No. 100-599.
One of these “certain, limited circumstances” may be a civil proceeding like the Viacom-Google litigation. However, even this exception is subject to strong protections: the VPPA permits the disclosure of personally identifying information in a civil lawsuit only "upon a showing of compelling need for the information that cannot be accommodated by any other means" and then only if the subscriber has received notice and an opportunity to contest the request. 18 U.S.C. § 2710(b)(2)(F).
The VPPA also provides an exception for disclosure in the ordinary course of business. However, the ordinary course of business is a defined term, and does not include litigation. Under the Act, “the term ‘ordinary course of business’ means only debt collection activities, order fulfillment, request processing, and the transfer of ownership.” 18 U.S.C. § 2710(a)(2) (emphasis added).
Moreover, while the rules of discovery in civil lawsuits are traditionally broad, the VPPA trumps the discovery rules. As explained by the Senate Report:
This requirement for disclosure pursuant to court order in civil proceedings supersedes federal and state rules of discovery and would prevent disclosure pursuant to a court order in discovery proceedings unless that order complied with this subsection of the Act.
S. Rep. No. 100-599.
This is not to say that the VPPA completely forbids accessing information about video viewing records in litigation. Instead, the VPPA protects privacy by requiring a high standard, which must be met before viewing habits can be exposed.