Patreon, a monetization platform for content creators, has asked a federal judge to deem unconstitutional a rarely invoked law that some privacy advocates consider one of the nation’s “strongest protections of consumer privacy against a specific form of data collection.” Such a ruling would end decades that the US spent carefully shielding the privacy of millions of Americans’ personal video viewing habits.
The Video Privacy Protection Act (VPPA) blocks businesses from sharing data with third parties on customers’ video purchases and rentals. At a minimum, the VPPA requires written consent each time a business wants to share this sensitive video data—including the title, description, and, in most cases, the subject matter.
The VPPA was passed in 1988 in response to backlash over a reporter sharing the video store rental history of a judge, Robert Bork, who had been nominated to the Supreme Court by Ronald Reagan. The report revealed that Bork apparently liked spy thrillers and British costume dramas and suggested that maybe the judge had a family member who dug John Hughes movies.
Although the videos that Bork rented “revealed nothing particularly salacious” about the judge, the intent of reporting the “Bork Tapes” was to confront the judge “with his own vulnerability to privacy harms” during a time when the Supreme Court nominee had “criticized the constitutional right to privacy” as “a loose canon in the law,” Harvard Law Review noted.
Even though no harm was caused by sharing the “Bork Tapes,” policymakers on both sides of the aisle agreed that First Amendment protections ought to safeguard the privacy of people’s viewing habits, or else risk chilling their speech by altering their viewing habits. The US government has not budged on this stance since, supporting a lawsuit filed in 2022 by Patreon users who claimed that while no harms were caused, damages are owed after Patreon allegedly violated the VPPA by sharing data on videos they watched on the platform with Facebook through Meta Pixel without users’ written consent.
“Restricting the ability of those who possess a consumer’s video purchase, rental, or request history to disclose such information directly advances the goal of keeping that information private and protecting consumers’ intellectual freedom,” the Department of Justice’s brief said.
The Meta Pixel is a piece of code used by companies like Patreon to better target content to users by tracking their activity and monitoring conversions on Meta platforms. “In simplest terms,” Patreon users said in an amended complaint, “the Pixel allows Meta to know what video content one of its users viewed on Patreon’s website.”
The Pixel is currently at the center of a pile of privacy lawsuits, where people have accused various platforms of using the Pixel to covertly share sensitive data without users’ consent, including health and financial data.
Several lawsuits have specifically lobbed VPPA claims, which users have argued validates the urgency of retaining the VPPA protections that Patreon now seeks to strike. The DOJ argued that “the explosion of recent VPPA cases” is proof “that the disclosures the statute seeks to prevent are a legitimate concern,” despite Patreon’s arguments that the statute does “nothing to materially or directly advance the privacy interests it supposedly was enacted to protect.”
Patreon’s attack on the VPPA
Patreon has argued in a recent court filing that the VPPA was not enacted to protect average video viewers from embarrassing and unwarranted disclosures but “for the express purpose of silencing disclosures about political figures and their video-watching, an issue of undisputed continuing public interest and concern.”
That’s one of many ways that the VPPA silences speech, Patreon argued, by allegedly preventing disclosures regarding public figures that are relevant to public interest.
Among other “fatal flaws,” Patreon alleged, the VPPA “restrains speech” while “doing little if anything to protect privacy” and never protecting privacy “by the least restrictive means.”
Patreon claimed that the VPPA is too narrow, focusing only on pre-recorded videos. It prevents video service providers from disclosing to any other person the titles of videos that someone watched, but it does not necessarily stop platforms from sharing information about “the genres, performers, directors, political views, sexual content, and every other detail of pre-recorded video that those consumers watch,” Patreon claimed.
Those disclosures to many would seem just as invasive as revealing the title of a video they watched, Patreon argued, but there’s no effort to protect consumer privacy against any of these other disclosures or to update the law to stop platforms like YouTube or Facebook from sharing data on what live videos a user has watched.
“Its myopic focus on a single attribute of the video, the title, leaves every other meaningful aspect of viewer privacy unprotected,” Patreon’s court filing said, concluding that “ultimately the VPPA’s flaw is not just that it fails to address ‘all aspects of [the] problem,’ its flaw is that it fails to directly address the supposed problem at all.”
For Patreon, perhaps the most egregious part of the law—second only to its presumed damages of $2,500 per violation—is the VPPA’s consent requirement. Patreon has described both clauses as “arbitrary and onerous.”
The VPPA requires written consent for each disclosure of a person’s video data. According to Patreon users, they never knew they’d consented to data sharing through the Meta Pixel.
“At no point are Patreon users informed about Patreon’s dissemination of their individual video-watching preferences to a third party,” Patreon users’ amended complaint said. “Nor do Patreon users consent to such sharing through a standalone consent form, as required by the VPPA.”
Users have argued that Patreon could secure written consent before each disclosure by requiring users to click a pop-up or check a box before viewing. But Patreon engineer Jason Byttow has said that complying with the VPPA’s consent requirement imposes “unnecessary burdens” on Patreon by requiring “substantial engineering work” to build a new consent regime that would ultimately “degrade the user experience.”
“Generalizing the VPPA’s rules into global settings,” Byttow said, “would be a complex design challenge” because it would require building “tools for revoking consent.” If forced to comply with the statute, Patreon would have to undertake a “major engineering effort,” and “even then, it might not be possible to integrate the consent regime and tools into Patreon’s downstream systems,” Byttow said.
“Other federal statutes that are intended to protect consumer privacy, including privacy related to video, require just written consent or even just ‘consent,’ plainly a less burdensome alternative,” Patreon has argued.
Civil and digital rights experts back Patreon users
Patreon has asked US district judge Joseph Spero to find that the VPPA is unconstitutional or else rule that the consent requirement and presumed damages clauses should be struck from the law as “unjustified burdens.”
While Spero previously declined to dismiss the case based on Patreon’s First Amendment claims, he agreed to consider the arguments at a later date. According to MediaPost, Spero will hold a hearing in March to review evidence of the VPPA’s alleged unconstitutional restrictions on Patreon’s speech.
Civil and digital rights groups—the Electronic Frontier Foundation, the Center for Democracy and Technology, and the American Civil Liberties Union—backed Patreon users in a December brief arguing that “striking down” the VPPA “would put the First Amendment interests of millions of Americans at risk.”
These groups argued that challenges from video services arguing that preventing disclosures of user video data violates their First Amendment rights should be considered on a case-by-case basis. That way, platforms can raise claims regarding any necessary disclosures about public figures’ viewing habits that serve a specific public interest “while continuing to allow application of” privacy laws like VPPA “in the ordinary course,” their brief said.
Like Bork, the two Patreon users suing have claimed “no public embarrassment, humiliation, harm to reputation, or other injury to a privacy interest, nor any economic loss” from Patreon’s use of the Pixel. Instead, they “claim injury solely in the fact of the disclosure itself,” which Patreon argued does not warrant presumed damages. But rights groups think that “VPPA provides Americans with critical, private space to view expressive material, develop their own views, and to do so free from unwarranted corporate and government intrusion. That breathing room is often a catalyst for people’s free expression.”
“Privacy may be most obviously necessary when it protects against unwarranted disclosure to the government, but similar concerns justify laws that ensure privacy from private actors as well,” rights groups argued. “People using video services would be chilled from viewing content—and being inspired by it—if they knew services were in the business of freely disclosing their viewing histories. Privacy thus shields ‘the imagination of the human mind’ from corporate and government surveillance.”