Netflix might be in a bit of trouble. According to Wired, an anonymous closeted lesbian is suing Netflix and alleging that, in violation of the Video Privacy Prevention Act, Netflix released information about her renting history that may reveal her lesbian tendencies, which she further alleges that “were her sexual orientation public knowledge, it would negatively affect her ability to pursue her livelihood and support her family and would hinder her and her children’s ability to live peaceful lives.”. She’s suing them for $2,500 for EVERY ONE of over 2m Netflix customers.
Allow me to explain why this is, in my opinion, bunk.
First off, let me explain the nature of what went on. In a nutshell, Netflix recently held a contest with programmers to try to further refine their recommendations algorithm- that is, in simple English, the system that recommends movies for you to rent based on what you’ve seen before. To give a realistic testing scenario, Netflix provided a huge database of real customers to each contestant- however, in an anonymous format (customers were IDed by arbitrary numbers- there were no e-mails or anything provided, at least to my knowledge).
What this essentially means is that the contestants were provided what could have very well been fake people with rental histories- nothing else. This, as you can imagine, lends them to make recommendations based on previous rentals- and, to that extent, to stereotype the user. For example, if I were to rent a bunch of action movies, then the system would (err, should) be able to classify me as an “action movie guy”, and then recommend further action movies. It gets much more complex than that, but that’s the simple idea.
So, the question of the case is simple: does this information violate the VPPA? No. Here’s why.
Before I begin, let’s examine the text of the VPPA itself, § 2710.b.1:
A video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person for the relief provided in subsection
But let’s get specific. There’s a caveat to this, outlined in § 2710.b.2.e. The video tape service provider may disclose this information if doing such is “incident to the ordinary course of business of the video tape service provider”.
Also note that in § 2710.a.3, “personally identifiable information” is defined as “includes information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider”
Okay, time to break this down.
First off, the obvious: one could very easily argue that holding this contest is entirely within the bounds of § 2710.b.2.e – that is, that Netflix is a company which regularly is in the process of experimenting and furthering their database, as doing such is a very regular business for technology-based companies. Netflix is by far not the only company to hold such contests or release such data, nor is it the only one to open up requests for refinement algorithms to the general public. One may say that Netflix may be in the clear merely because it is expected that this is normal business policy for Netflix- that is to say, it’s not picking on the “Jane Doe” of this case by any means.
Second off, “personally identifiable information” is a key term here. Does the information Netflix provided connect a person (that is, a living and breathing entity) to their rental history, and does it detail if they requested or obtained materials? Absolutely not. What it does is provide a face-and-nameless history of rentals from Netflix, merely tied together with the invisible strings of faceless numbers. Indeed, one can take someone’s “user number” and begin to derive information about themselves from it (since it is indeed the whole point of this contest), but that does NOT mean a person is explicitly connected to a movie.
One could even argue that this lawsuit goes against the general spirit of the VPPA- that is, Netflix is not doing anything inherently malicious here. Not to bash the “Jane Doe” of this case, but nobody cares about her, nor any of the other people in the database. Indeed, her invisible doppelganger number could indeed indicate her taste in lesbian movies, but does that mean that Netflix is going to do the impossible, find out who she is, and release it to the world? Of course not. The Bork VPPA case, at least in my mind, was about providing people the reassurance that their video watching habits were not targets of public criticism and weapons of public shaming. Netflix didn’t hand this information out to reporters, nor did it hand it to anyone with names attached- it was just given as pure, raw, boring data. This case has nothing to do with Bork’s case.
What really angers me about this is that the “Jane Doe” in question is clearly doing this in the most staged manner possible- not only is she demanding the maximum $2,500 for EVERY customer (totaling over $5b, which would undoubtedly destroy Netflix), but she’s doing so on the assumption that her livelihood would be fundamentally ruined if this information came out. I know it seems a little cold for me to say this, but I don’t see a logical progression between “A major corporation I’ve provided information to might suddenly arbitrarily zone in on me, spend 10+ man hours and ruin my personal life for no reason” to “everyone gets $2,500″. Then again, I’m not really one to “get” class action suits anyway, I’ve actively not participated in a few I had the opportunity to for that reason.
In any case, I really hope Netflix’s legal team can destroy this woman in court- this case just seems really wrong.
Tags: computers, law, netflix, privacy, programming, servers, Technology, vppa, web 2.0
