The takeaway from a Senate Judiciary Subcommittee hearing yesterday:  A House-passed bill to update the 1988 Video Privacy Protection Act (VPPA) raises privacy concerns and will get scrutinized in the Senate.  Senator Al Franken (D-MN), Chairman of the Senate Judiciary Subcommittee on Privacy, Technology, and the Law, and Ranking Republican Tom Coburn (R-OK), both expressed reservations about the House bill, H.R. 2471, to update the VPPA to allow video companies to seek one-time “blanket” or “durable choice” consent from consumers to share their video rental/viewing information with third parties.  Currently, the VPPA provides that consent must be obtained by a video company to share such information on a case-by-case basis.

Nonetheless, both Senators agreed on the need to update the VPPA to cover new technology such as online streaming.  Franken noted that no court has decided whether the VPPA as currently written covers streaming.  Full Committee Chairman Patrick Leahy (D-VT), author of the VPPA, agreed with his colleagues that the House bill may not adequately protect consumer privacy and fails to address streaming or cloud computing.

The witnesses were split on their views of the House bill:  Rep. Mel Watt (D-NC), Ranking Member of the House Judiciary Subcommittee on Intellectual Property, Competition, and the Internet, testified that the bill is flawed due to being rushed through the House, which did not conduct a hearing on the bill and passed it 303-116 under expedited procedures on December 6.  Private sector witnesses David Hyman, general counsel for Netflix, and Christopher Wolf, an attorney in private practice, expressed support for the bill, while Marc Rotenberg of the Electronic Privacy Information Center and law professor William McGeveran both criticized the House bill, with McGeveran defending the VPPA in its current form and Rotenberg advocating several updates to the VPPA.

Clearly, we have not heard the last word on modernizing the VPPA.  With its implications for privacy issues surrounding mobile apps and other emerging technologies, expect the Senate to take its time with H.R. 2471 and check back here for further updates.

Hearing testimony is available at http://www.judiciary.senate.gov/hearings/hearing.cfm?id=f14e6e2889a80b6b53be6d4e412d460f