As millions of internet users watch videos online for news and entertainment, it is essential to uphold a federal privacy law that protects against the disclosure of everyone's viewing history, EFF argued in court last month.
For decades, the Video Privacy Protection Act has safeguarded people's viewing habits by generally requiring services that offer videos to the public to get their customers' written consent before disclosing that information to the government or a private party.
Although Congress enacted the law in an era of physical media, the VPPA applies to internet users' viewing habits, too.
That service for content creators and viewers is facing a lawsuit in a federal court in Northern California, brought by users who allege that the company improperly shared information about the videos they watched on Patreon with Facebook.
Patreon argues that even if it did violate the VPPA, federal courts cannot enforce it because the privacy law violates the First Amendment on its face under a legal doctrine known as overbreadth.
This doctrine asks whether a substantial number of the challenged law's applications violate the First Amendment, judged in relation to the law's plainly legitimate sweep.
Courts have rightly struck down overbroad laws because they prohibit vast amounts of lawful speech.
EFF is second to none in fighting for everyone's First Amendment rights in court, including internet users and the companies that host our speech online.
Patreon's First Amendment argument is wrong and misguided.
As EFF, the Center for Democracy & Technology, the ACLU, and the ACLU of Northern California argued in their friend-of-the-court brief, Patreon's argument is wrong because the VPPA directly advances the First Amendment and privacy interests of internet users by ensuring they can watch videos without being chilled by government or private surveillance.
As the brief recounts, courts have protected against government efforts to learn people's book buying and library history, and to punish people for viewing controversial material within the privacy of their home.
These cases recognize that protecting people's ability to privately consume media advances the First Amendment's purpose by ensuring exposure to a variety of ideas, a prerequisite for robust debate.
People's video viewing habits are intensely private, because the data can reveal intimate details about our personalities, politics, religious beliefs, and values.
Patreon's First Amendment challenge is also wrong because the VPPA is not an overbroad law.
There is a better path to addressing any potential unconstitutional applications of the video privacy law short of invalidating the statute in its entirety.
As EFF's brief explains, should a video provider face liability under the VPPA for disclosing a customer's video viewing history, they can always mount a First Amendment defense based on a claim that the disclosure was on a matter of public concern.
Courts have recognized that certain applications of privacy laws, such as the Wiretap Act and civil claims prohibiting the disclosure of private facts, can violate the First Amendment.
Generally courts address the First Amendment by invalidating the case-specific application of those laws, rather than invalidating them entirely.
Patreon's argument would see the VPPA gutted-an enormous loss for privacy and free expression for the public.
The court should protect against the disclosure of everyone's viewing history and protect the VPPA. You can read our brief here.
This Cyber News was published on www.eff.org. Publication date: Thu, 04 Jan 2024 19:13:05 +0000