Margot E. Kaminski and Shane Witnov, The VPPA is Dead, Long Live the VPPA: On Legislative Proposals for Protecting Reader and Viewer Privacy

Comment by: Christopher Wolf

PLSC 2013

Workshop draft abstract:

This paper will add to the existing literature on “intellectual privacy.”  It will examine the current state of legislated privacy for readers or viewers of intellectual goods, in the wake of the recent amendments to the federal Video Privacy Protection Act (VPPA).  This renewed analysis is necessary in light of recent political, judicial, technological, and social developments. This paper additionally aims to introduce more history and social science research into the legal literature on intellectual privacy.

Part I: Contribution to discussion of why Intellectual Privacy Matters

The first part of this paper will contribute to the ongoing scholarship on why intellectual privacy is important. It will do so from three perspectives: legal, historical, and sociological and psychological.

Several scholars have examined First Amendment jurisprudence for evidence of protection for readers and their freedom to inquire and develop ideas.  This paper will revisit this jurisprudence with a narrower focus, looking for when courts have supported intellectual privacy in ways more directly relevant to a right to read unobserved.  This section will also discuss at greater length the divide in the First Amendment between protection for speakers and protection for readers and listeners, comparing it to the clear protection for readers that exists in international law.

This paper will additionally add to the intellectual privacy literature with analysis of related recent and forthcoming jurisprudence. In particular,  the Supreme Court recently decided U.S. v. Jones, on GPS location tracking. Several Justices expressed concerns about dragnet surveillance and its implications for associational privacy. The case of Clapper v. Amnesty International USA will likely come down later in 2013, and will have consequences for the Court’s understanding of privacy harms and standing, in both the First and Fourth Amendment contexts.

This paper also aims to introduce more in-depth historical and social science examples into the legal literature. It will discuss historical examples of the effects of totalitarian regimes on creative freedom and speech. And it will examine social science literature on surveillance and chilling effects, and additionally examine social science literature on conditions necessary for creative process.

Part II: Recent technological and social developments

In recent years, a number of significant technological and social developments have taken place related to intellectual privacy. As both Richards and Kaminski noted, in 2011-2012 “frictionless reading” arose on Facebook.  However, by the end of 2012, the Guardian closed its social reader app, and use of the Washington Post’s Social Reader declined by 95 percent.  Additionally in 2012, the novel Fifty Shades of Grey became a best-seller.  The book’s success was credited to the rise of e-book readers and the feeling of privacy readers had because others couldn’t see the book’s cover in public, and the tame covers ultimately chosen by the publishers for the hard copy of the book.  The visible failure of frictionless reading and the success of Fifty Shades of Grey suggest that current social norms support legislation protecting the privacy of reading materials. However, increasingly librarians have been moving away from privacy protection as they move into supplying e-books, suggesting that private ordering by social institutions may no longer be a dependable solution.

A recent technological development has serious implications for intellectual privacy, and has not been adequately discussed. Digital technology now supports surveillance of readers (including students) on an increasingly granular level.  The Kindle can track highlighted passages, and the pace at which one reads. E-textbooks can report back on how much students are reading or paying attention.  Eye trackers can pinpoint exactly where viewers pay attention.  This phenomenon of increased granularity and its significance for the theorizing of intellectual privacy has not been remarked on at any length in existing literature.  This paper will discuss whether and when there is a distinction between purchasing information goods and using such goods to form ideas, and whether additional protection should be afforded to the details of reading behavior.  This paper will thereby attempt to incorporate into intellectual privacy the growing literature on mind reading and self-incrimination.  It will also address the tension between monetization through monitoring, and respect for readers’ privacy.

Part III: Legislation

As Neil M. Richards noted in his recent article on social reading, there were two significant political developments concerning reader/viewer privacy in 2012.  The California Reader Privacy Law was passed in 2012,  but industry also pushed heavily for amendments to the VPPA. Since Richards’ article, the VPPA Amendments Act of 2012 was passed by Congress on December 20, 2012 and currently awaits Presidential signature.

This paper will review and categorize state legislation on library records, bookstores, and video rentals. It will review this legislation with attention to the following: notice requirements, data retention or deletion requirements, consent requirements, protection from consequences such as profiling, limitations on law enforcement behavior, and the creation of private rights of action. The authors of this paper believe that a thorough categorization of these axes will provide a more thorough depiction for legislators than a focus on just notice and consent.

The paper will close with a proposal for state and/or federal legislation supporting intellectual privacy.