In 1987, Ronald Reagan was nominated for Robert Bork to the Supreme Court. Bork was an extreme, hard-line conservative whose views included the idea that Roe v. Wade should be overturned because he believed there was no constitutional right to privacy whatsoever. In response, a Washington, DC video store leaked a list of his movie rentals, which included films like A Day At the Races and The Man Who Knew Too Much. It was nothing salacious, but Republicans were furious. Bork’s nomination was rejected.
The next year, a Republican-controlled Congress passed the Video Privacy Protection Act (VPPA) in response. Bork faded away; the VPPA lived on. Back then, it was probably hard to imagine the world of the internet, where companies spy on our every move and send the data to countless third parties, but here we are. The Reagan-era law says that “video tape service providers” (or anyone who offers similar services) can’t disclose personally identifiable information about what you watch without your informed, written consent. If a company breaks the law, they owe a cool $2,500 to every plaintiff in a class action suit, not counting potential punitive damages and attorneys fees. That could add up to millions of dollars fast. And depending on how you interpret the VPPA in 2022, a majority of the millions of websites that show videos could be breaking the law. More than a few lawyers see it that way.
A few months ago, I began seeing Instagram ads asking me to join class actions over alleged video privacy violations. One blaring exhortation read, “Do you have an account with the NY Post? Have you watched videos on nypost.com? If so, you may be entitled to compensation.” A little digging unearthed and absolute flood of