It's been a long day at work. You walk in the door, drop your bag and turn on your computer. You start a playlist on Spotify. Bon Jovi roars, "It's my life, it's now or never ..." Facebook pops up, "Would you like to share this song with your friends?" You click yes. Songs keep playing and Facebook keeps asking if you want to share them. Time for TV. Old "Saturday Night Live" clips are good for a laugh, and Hulu has them on Facebook. You watch "Daily Affirmation with Stuart Smalley," a skit by Al Franken long before he became a senator for Minnesota. Again, Facebook asks if you want to share the show with your friends. Funny, because you already authorized those apps to publish whatever you listen to or watch.
Nagging requests for permission could overwhelm Facebook if the Senate decides all media should be governed by the 1988 Video Privacy Protection Act, or VPPA — passed after Supreme Court nominee Robert Bork's video rental records were published in a newspaper. Under the law, people must give their consent each time they want to share a video title that they watch. Movie and TV streaming did not exist 25 years ago, and Congress is considering whether the law should be changed. The House said yes, removing the permission restriction, but the Senate is not so sure.
"I have some reservations," Al Franken, chair for the Senate Subcommittee on Privacy, Technology and the Law, said at a recent hearing. "Case by case consent is a really smart thing."
In the meantime, Hulu launched a video app for Facebook last fall enabling users to authorize once and share forever. You grant permission to Hulu to share your initial video and all future videos before the show starts streaming on Facebook. What you watch is then posted in your friends' tickers, a real-time activity log, with a link to the video, so they can watch it too.
Netflix launched its Facebook app at the same time as Hulu, but only to its subscribers outside the United States. The company held off because of "ambiguities" in the 1988 law, according to its general counsel, David Hyman. The company brought the issue to the House last year and is now trying to convince the Senate to follow suit.
The recent Senate subcommittee hearing revealed the divide: Is case-by-case authorization for videos an important privacy protection, or is it an annoyance in today's digital world? But in a surprise twist, it raised the question of whether the law should not only continue, but be applied to online articles, ebooks and music, as well.
The subcommittee heard from two reform supporters, Hyman from Netflix and privacy law attorney Christopher Wolf. The two opponents of the bill were William McGeveran, a law professor at the University of Minnesota, and Marc Rotenberg, executive director of the Electronic Privacy Information Center.
"In my view the greatest flaw in the VPPA is its limitation to video," McGeveran said. "I believe you should consider extending the protection to reading and listening habits as well as viewing."
Wolf agrees with McGeveran that the current law creates inconsistencies.
"A Facebook user can automatically share that she read the book 'The Godfather,' but not that she watched the movie, 'The Godfather.' That makes no sense," Wolf said.
However, he believes the VPPA restrictions should be loosened rather than applied to additional media.
"Facebook users are accustomed to a one-time authorization and the VPPA's case-by-case consent would just get in the way of their experience," he said. "Current law suggests they are not fit to make the… sharing decision with respect to the videos they watch."
The outcome is uncertain, and Netflix spokesperson Steve Swasey said that he could not speculate when the Senate would make a decision. Everyone agrees that the 1988 act should be updated for the 21st century, but how remains in contention.
If Stuart Smalley came to the stand, would he agree with his creator, Senator Franken, or would he say, "We are good enough. We are smart enough. And doggone it, we can decide whether or not to share what we watch, what we listen to and what we read."
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