Many consumers have heard of the Telephone Consumer Protection Act (TCPA), the statute that prevents a company from autodialing a consumer’s cell phone without his or her prior express consent. Less well know is the Video Privacy Protection Act (VPPA), a statute that prohibits “video tape service providers” from knowingly disclosing consumers’ personally identifiable information. See 18 U.S.C. § 2710. Although the VPPA language may be somewhat antiquated, the statute has been refreshed and interpreted to apply to video and television streaming providers. With its significant statutory damages of $2,500 per violation, the VPPA could become the consumer protection statute de jour.
Application of the VPPA, however, is considerably more narrow than that of the TCPA. To establish a claim under the VPPA, a plaintiff must show that a provider knowingly disclosed a consumer’s personally identifiable information (PII), which is defined as “information which identifies a person as having requested or obtained specific video material or services from a video tape service provider.” This requirement has generally been applied to mean that a consumer must register for a video service, and the service must disclose information that would link a specific, identifiable person to a particular video choice. In addition, the statute exempts PII that is disclosed in the ordinary course of business, including “debt collection activities, order fulfillment, request processing, and the transfer of ownership.”
Thus, it appears that the VPPA is more constrained than the TCPA, at least for now. However, the substantial statutory penalties coupled with the exploding market for video streaming services may provide fertile ground for litigation. If courts interpret the VPPA broadly, as they have with the TCPA, they may open the door for consumer class litigation.