The Video Privacy Protection Act (VPPA) is a bill that was passed by the United States Congress in 1988 as and signed into law by President Ronald Reagan. It was created to prevent what it refers to as "wrongful disclosure of video tape rental or sale records" or similar audio visual materials, to cover items such as video games and the future DVD format. Congress passed the VPPA after Robert Bork's video rental history was published during his Supreme Court nomination and it became known as the "Bork bill". It makes any "video tape service provider" that discloses rental information outside the ordinary course of business liable for up to $2500 in actual damages.
Computer-based VPPA litigation
Prior to 2007, VPPA had not been cited by privacy attorneys as a cause of action involving electronic computing devices. With the emergence of new-age computing technology and devices in the early 2000s came websites, 3rd party advertising, and tracking firms that posed a possible risk to the user's privacy. While computer technology was progressing rapidly, federal and state laws had failed to stay up to date. As such, legal actions for violations were minimal to non-existent. A new method to litigate Federal privacy cases was needed to protect the hundreds of millions of people violated by the unauthorized tracking of user's activities online. No law firms had litigated cases involving the computer technology inherent within the exchange of user data between third-party affiliated entities, thus there was no case precedent, no "blueprint" to follow. Earlier cases, such as the double-click "cookie" case in 2001, had relied on using a wiretap statute, the Electronic Communication Privacy Act ("ECPA"). While a plausible allegation, it was not a legally and evidentially appropriate allegation since the website user had granted such permissible use (dismissing such allegation with legal reasons) within the website's terms of service ("TOS").
In 2007, Texas attorney Joseph H. Malley wanted to develop a "template" to use for filing Federal Data Privacy Class Actions, but none existed. After months of researching state and Federal case law and statutes, Malley determine that VPPA could be the "lynch-pin" to control unauthorized access to user's personal data collected online. He then filed a Federal Class Action lawsuit against Facebook and thirty-three companies; including Blockbuster, Zappos, and Overstock.com, due to privacy violations caused by the Facebook Beacon program citing VPPA., the program resulted in users' private information, obtained from third-party affiliate marketing websites, being posted on Facebook without consent. This act was referenced in the Lane v. Facebook, Inc. class action lawsuit. Based on this act, it is generalized to other forms of rental records such as DVDs, video games, and more. This was the FIRST time VPPA had been used in litigation for such purposes, and would forever change Federal Data Privacy litigation.
Malley had previously litigated in the early 2000s using another federal privacy law, the Driver's Privacy Protection Act ("DPPA"), which provided statutory damages for to the unauthorized access of DMV records. This law allowed Malley to successfully file numerous federal class actions against hundreds of companies, but a new theory of liability was needed for added assurance to survive a motion to dismiss. The problem, no case law involving this new-age type of technology. Substantial research was thus required, eventually revealing an "archaic" statute created in 1988: Video Privacy Protection Act ("VPPA"). Arguably unrelated to present technology, VPPA concerned about obtaining information from a physical location and involved VHS and Betamax recordings. As such, lawsuits involving online entities that used audio-video would need to plead comparisons between the "old-new" technologies for advertising.