Blockbuster-era law governing privacy of video rentals gets a fresh look from the Supreme Court

WASHINGTON (AP) — In 1988, Congress enacted a law to protect the privacy of video rentals after a journalist published details of Supreme Court nominee Robert Bork’s movie rental history during his Senate hearings. Nearly four decades later, the court is weighing how the Blockbuster-era statute fits into the modern age of digital commerce.The Supreme Court heard arguments Wednesday in a case exploring the extent to which companies from an array of sectors are obligated to protect the privacy of customers’ video-viewing data. A ruling could resolve a lower-court split over how a consumer qualifies for the law's protections.Consumer advocates say the Video Privacy Protection Act of 1988 was broadly written to adapt to inevitable advances in technology and safeguard consumers' personal information.Critics of the law view it as a relic that plaintiffs' lawyers are trying to exploit in a way that Congress could not have anticipated before the internet revolutionized commerce.

Michael Salazar claims Paramount violated the law by disclosing his video-watching history to Facebook without his consent, allowing companies to use his personal information to create and display targeted advertising.Justice Elena Kagan, who said the language of the statute is “relatively clear," stressed that it is easy for companies to obtain consent from customers to use their digital data.“Going forward, you have two very simple solutions," Kagan told Paramount lawyer Paul Clement. And the other is to stop selling people's private information. Take your pick.”“Yeah, or put everything behind a paywall.

That would be great,” Clement responded sarcastically.“Not the same thing,” Kagan said.“Well, I think that's one way that people would try to deal with this,” Clement said.Congress passed the law a year after a video store clerk provided a Washington City Paper reporter with a list of 146 movies rented by Bork, a federal appeals court judge at the time of his nomination by Republican President Ronald Reagan. The Supreme Court heard arguments Wednesday in a case exploring the extent to which companies from an array of sectors are obligated to protect the privacy of customers’ video-viewing data. Consumer advocates say the Video Privacy Protection Act of 1988 was broadly written to adapt to inevitable advances in technology and safeguard consumers’ personal information.

Critics of the law view it as a relic that plaintiffs’ lawyers are trying to exploit in a way that Congress could not have anticipated before the internet revolutionized commerce. They are urging the justices to reject an interpretation of the law that deprives companies of a vital source of revenue from targeted online advertising. Justice Elana Kagan, who said the language of the statute is “relatively clear,” stressed that it is easy for companies to obtain consent from customers to use their digital data.

“Going forward, you have two very simple solutions,” Kagan told Paramount lawyer Paul Clement. That would be great,” Clement responded sarcastically. “Well, I think that’s one way that people would try to deal with this,” Clement said.

Congress passed the law a year after a video store clerk provided a Washington City Paper reporter with a list of 146 movies rented by Bork, a federal appeals court judge at the time of his nomination by Republican President Ronald Reagan.