Our guest blogger Neil Richards, a Professor of Law at Washington University School of Law, turns his sights on video privacy in this guest blog post. It whets our appetite for his forthcoming book on Intellectual Privacy. So here is Professor Richards’s post:
The House of Representatives recently passed an amendment to a fairly obscure a law known as the Video Privacy Protection Act. This law protects the privacy of our video rental records. It ensures that companies who have information about what videos we watch keep them confidential, and it requires them to get meaningful consent from us before they publish them. The House, at the urging of Netflix and Facebook, has passed an amendment that would allow these companies to share our movie watching habits much more easily. The Video Privacy Act was passed after the Washington City Paper obtained the video rental records of Supreme Court nominee Robert Bork and published them in order to politically discredit him. It worked. The Video Privacy Act rests on the enduring wisdom that what we watch is our own business, regardless of our politics. It allows us to share films we’ve watched on our own terms and not those of video stores or online video providers.
What’s at stake is something privacy scholars call “intellectual privacy” – the idea that records of our reading habits, movie watching habits, and private conversations deserve special protection from other kinds of personal information. The films we watch, the books we read, and the web sites we visit are essential to the ways we make sense of the world and make up our minds about political and non-political issues. Intellectual privacy protects our ability to think for ourselves, without worrying that other people might judge us based on what we read. It allows us to explore ideas that other people might not approve of, and to figure out our politics, sexuality, and personal values, among other things. It lets us watch or read whatever we want without fear of embarrassment or being outed. This is the case whether we’re reading communist or anti-globalization books; or visiting web sites about abortion, gun control, cancer, or coming out as gay; or watching videos of pornography, or documentaries by Michael Moore, or even “The Hangover 2.”
For generations, librarians have understood this. Libraries were the Internet before computers – they presented the world of reading to us, and let us as patrons read (and watch) freely for ourselves. But librarians understood that intellectual privacy matters. A good library lets us read freely, but keeps our records confidential in order to safeguard our intellectual privacy. But we are told by Netflix, Facebook, and other companies that the world has changed. “Sharing” as they call it is the way of the future. I disagree. Sharing can be good, and sharing of what we watch and read is very important. But the way we share is essential. Telling our friends “hey – read this – it’s important” or “watch this movie – it’s really moving” is one of the great things that the Internet has made easier. But sharing has to be done on our terms, not on those that are most profitable for business. Sharing doesn’t mean a norm of publishing everything we read on the Internet. It means giving us a conscious choice about when we are sharing our intellectual habits, and when we are not.
Industry groups are fond of saying that good privacy practices require consumer notice and consumer choice. The current Video Privacy Act is one of the few laws that does give consumers meaningful choice about protecting their sensitive personal information. Now is not the time to cut back on the VPPA’s protections. Now is the time to extend its protections to the whole range of intellectual records – the books we buy, our internet search histories, and ISP logs of what we read on the Internet. As a first step, we should reject this attempt to eviscerate our intellectual privacy.