(a) Video rental record privacy. The Video Privacy Protection Act of 1988220 is a good example of the U.S. practice of enacting privacy legislation in response to dramatic instances of information misuse. Prior to its enactment in 1988, anybody could obtain a list of movies rented by a particular customer without that customer's permission. Congress passed legislation to protect video records only after a Washington newspaper published Judge Robert Bork's video rental history following his nomination to the U.S. Supreme Court.221
Today Americans are free to watch rented films in the privacy of their own homes without fear that their video rental records might be disclosed to the public. A video store that knowingly releases a customer's rental information or video purchases is liable for damages to that customer.222 There are logical exceptions to this rule, however. Video stores may, of course, release rental records with a customer's consent.223 Law enforcement agencies may obtain this information pursuant to a search warrant, court order, or grand jury subpoena.224
(b) Cable movie records. Pay-per-view cable might be viewed as the online counterpart of video rental shops. But a different privacy standard applies to cable movie rental. Under the Cable Communications Policy Act (CCPA),225 enacted to establish a cohesive national cable communications policy and to set guidelines for the cable television industry, cable subscriber information may be disclosed to a government entity only pursuant to a court order,226 a higher hurdle than obtaining the grand jury subpoena necessary to obtain video rental records.
Cross-sector inconsistencies exist as well. For example, the CCPA protects personally identifiable information, including lists of names and addresses on which the subscriber is included.227 The rationale:
Cable systems, particularly those with a "two-way" capability, have an enormous capacity to collect and store personally identifiable information about each cable subscriber . . . . subscriber records from interactive systems can reveal details about bank transactions, shopping habits, political contributions, viewing habits and other significant personal decisions.228
Although this statement is undeniably true, telephone billing records may similarly reveal intimate information about an individual (e.g., phone calls to a psychiatrist's office on a regular basis). One might expect similar standards to govern access to these records. Yet phone records are accessible with grand jury subpoenas; cable records require a court order.
The Act restricts the ways in which cable companies may collect, retain, and disclose personally-identifiable subscriber information, and requires industry to inform consumers of their rights and available remedies. The Act allows cable operators to disclose the names and addresses of subscribers as part of a mailing list if they have given subscribers the opportunity to prohibit such disclosures and the mailing lists do not reveal the nature or extent of subscribers' uses of services.229
The privacy provisions of the Cable Act apply only to cable-based communications--not to direct broadcast satellites and wireless transmissions. Thus, whether there are restrictions on the use of data, and whether the consumer has the right to opt-out, is determined by the type of technology used to transmit information, rather than the type of information being gathered.
220. Pub. L. No. 100-618, 102 Stat. 3195, 18 U.S.C. §§ 2701-11.
221. "[T]he [Video Privacy Protection Act]...was written [by Congress] after a weekly Washington newspaper obtained and published the video rental records of Bork." L. A. Times, Oct. 20, 1988, at 2, available in 1988 WL 2197371.
222. 18 U.S.C. § 2710(a) & (c).
223. 18 U.S.C. § 2710(b)(2)(B).
224. 18 U.S.C. § 2710(b)(2)(C) & (F).
225. Pub. L. No. 98-549, 98 Stat. 2779, 47 U.S.C. § 551.
226. 47 U.S.C. § 551(h).
227. 47 U.S.C.A. § 551(c) (1991 & Supp. 1997).
228. H.R. Rep. No. 98-934, at 29 (1984) reprinted in 1984 U.S.C.C.A.N. 4655, 4666.
229. See Ronald L. Plesser, Esq., Testimony before the Privacy Working Group of the National Information Infrastructure Task Force, Jan. 27, 1994.