Video privacy be damned.
Louis L. Stanton, a senior judge on the United States District Court for the Southern District of New York, issued an order (PDF) Wednesday requiring Google to turn over every record of every video watched by YouTube users, including users’ login and IP addresses, to Viacom, which is suing Google for allowing clips of its copyright videos to appear on YouTube.
The court’s order grants Viacom’s request and erroneously ignores the protections of the federal Video Privacy Protection Act (VPPA), and threatens to expose deeply private information about what videos are watched by YouTube users. The VPPA passed after a newspaper disclosed Supreme Court nominee Robert Bork’s video rental records. As Congress recognized, your selection of videos to watch is deeply personal and deserves the strongest protection.
Google correctly argued that “the data should not be disclosed because of the users’ privacy concerns,” citing the VPPA, 18 U.S.C. § 2710. However, the Court dismissed this argument with no analysis, stating “defendants cite no authority barring them from disclosing such information in civil discovery proceedings, and their privacy concerns are speculative.”
In a footnote, the Court references the VPPA, noting that the federal law “prohibits video tape service providers from disclosing information on the specific video materials subscribers request or obtain.” It is possible that the reference to “video tapes” in the VPPA was confusing. However, the Act is not limited to the technology available at the time of its enactment.
To the contrary, the act refers to “prerecorded video cassette tapes or similar audio visual materials.” A YouTube video may not be a videotape, but certainly qualifies as audio visual material. Thus, YouTube is a “video tape service provider” under the act, because it is “engaged in the business [of] delivery of … audio visual materials.” The VPPA protects “personally identifiable information,” which is defined to include “information which identifies a person as having requested or obtained specific video materials or services.” This is exactly what is in the Logging database.
The Court also stated that Google did “not refute that the ‘login ID is an anonymous pseudonym that users create for themselves when they sign up with YouTube’ which without more ‘cannot identify specific individuals.’”
As an initial matter, this is factually insufficient. If any single one of the YouTube users in the Logging database picked a Login ID that does identify that user (i.e. if my YouTube login was kurtopsahl), then the Logging database’ information about viewing habits is protected by the VPPA, even if others pick anonymous pseudonyms.
Furthermore, even Google’s IP address statement only asserts that “in most cases” the IP address is not identifiable, certainly not in all cases. Putting aside whether a Google Public Policy blog’s statement on an unrelated topic can waive the privacy rights of YouTube users, the statement means that at least some YouTube users are identifiable, and must be protected by the VPPA.
In any event, the court ordered production of not just IP addresses, but also all the associated information in the Logging database. Whatever might be said about ‘an IP address without additional information,’ the the AOL search history leak fiasco shows that the material viewed by a user alone can be sufficient to identify the user, even with neither a login nor an IP address.
The Court’s erroneous ruling is a set-back to privacy rights, and will allow Viacom to see what you are watching on YouTube. We urge Viacom to back off this overbroad request and Google to take all steps necessary to challenge this order and protect the rights of its users.
UPDATE: Unfortunately I’ve been too busy with other things to stay on top of this case. Fortunately, Fred Stutzman is following it.