EFF Asks Court to Uphold Federal Law That Protects Online Video Viewers’ Privacy and Free Expression

[Undescribed Horrific Abuse, One Victim & Survivor of Many]

In the spirit of less spam! There's so much stuff out there like this.
I have not read the below article but it's from the EFF so it's gotta
be good.

https://www.eff.org/deeplinks/2024/01/eff-asks-court-uphold-federal-law-protects-online-video-viewers-privacy-and-free

JANUARY 4, 2024

As millions of internet users watch videos online for news and
entertainment, it is essential to uphold a federal privacy law that
protects against the disclosure of everyone’s viewing history, EFF
argued in court last month.

For decades, the Video Privacy Protection Act (VPPA) has safeguarded
people’s viewing habits by generally requiring services that offer
videos to the public to get their customers’ written consent before
disclosing that information to the government or a private party.
Although Congress enacted the law in an era of physical media, the
VPPA applies to internet users’ viewing habits[1], too.

The VPPA, however, is under attack by Patreon. That service for
content creators and viewers is facing a lawsuit in a federal court in
Northern California, brought by users who allege that the company
improperly shared information about the videos they watched on Patreon
with Facebook.

Patreon argues that even if it did violate the VPPA, federal courts
cannot enforce it because the privacy law violates the First Amendment
on its face under a legal doctrine known as overbreadth[2]. This
doctrine asks whether a substantial number of the challenged law’s
applications[3] violate the First Amendment, judged in relation to the
law’s plainly legitimate sweep.  Courts have rightly struck down
overbroad laws because they prohibit vast amounts of lawful speech.
For example, the Supreme Court in Reno v. ACLU invalidated much of the
Communications Decency Act’s (CDA) online speech restrictions because
it placed an “unacceptably heavy burden on protected speech.”

EFF is second to none in fighting for everyone’s First Amendment
rights in court, including internet users (in Reno mentioned above[4])
and the companies that host our speech[5] online. But Patreon’s First
Amendment argument is wrong and misguided. The company seeks to
elevate its speech interests over those of internet users who benefit
from the VPPA’s protections.

As EFF, the Center for Democracy & Technology, the ACLU, and the ACLU
of Northern California argued in their friend-of-the-court brief,
Patreon’s argument is wrong because the VPPA directly advances the
First Amendment and privacy interests of internet users by ensuring
they can watch videos without being chilled by government or private
surveillance.

“The 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,” we wrote. “That
breathing room is often a catalyst for people’s free expression.”

As the brief recounts, courts have protected against government
efforts to learn people’s book buying[6] and library history[7], and
to punish people for viewing controversial material[8] within the
privacy of their home. These cases recognize that protecting people’s
ability to privately consume media advances the First Amendment’s
purpose by ensuring exposure to a variety of ideas, a prerequisite for
robust debate. Moreover, people’s video viewing habits are intensely
private, because the data can reveal intimate details about our
personalities, politics, religious beliefs, and values.

Patreon’s First Amendment challenge is also wrong because the VPPA is
not an overbroad law. As our brief explains, “[t]he VPPA’s purpose,
application, and enforcement is overwhelmingly focused on regulating
the disclosure of a person’s video viewing history in the course of a
commercial transaction between the provider and user.” In other words,
the legitimate sweep of the VPPA does not violate the First Amendment
because generally there is no public interest in disclosing any one
person’s video viewing habits that a company learns purely because it
is in the business of selling video access to the public.

There is a better path to addressing any potential unconstitutional
applications of the video privacy law short of invalidating the
statute in its entirety. As EFF’s brief explains, should a video
provider face liability under the VPPA for disclosing a customer’s
video viewing history, they can always mount a First Amendment defense
based on a claim that the disclosure was on a matter of public
concern.

Indeed, courts have recognized that certain applications of privacy
laws, such as the Wiretap Act and civil claims prohibiting the
disclosure of private facts, can violate the First Amendment. But
generally courts address the First Amendment by invalidating the
case-specific application of those laws, rather than invalidating them
entirely.

“In those cases, courts seek to protect the First Amendment interests
at stake while continuing to allow application of those privacy laws
in the ordinary course,” EFF wrote. “This approach accommodates the
broad and legitimate sweep of those privacy protections while
vindicating speakers’ First Amendment rights.”

Patreon's argument would see the VPPA gutted—an enormous loss for
privacy and free expression for the public. The court should protect
against the disclosure of everyone’s viewing history and protect the
VPPA.

You can read our brief here[9].

1: https://www.eff.org/deeplinks/2012/08/california-district-court-holds-video-privacy-protection-act-applies-online-video
2: https://firstamendment.mtsu.edu/article/overbreadth/
3: https://supreme.justia.com/cases/federal/us/559/460/
4: https://www.eff.org/deeplinks/2007/06/ten-years-after-aclu-v-reno-free-speech-still-needs-defending
5: https://www.eff.org/press/releases/landmark-battle-over-free-speech-eff-urges-supreme-court-strike-down-texas-and
6: https://law.justia.com/cases/colorado/supreme-court/2002/01sa205-0.html
7: https://firstamendment.mtsu.edu/article/libraries-and-intellectual-freedom/
8: https://www.oyez.org/cases/1968/293
9: https://www.eff.org/document/stark-v-patreon-eff-cdt-aclu-aclu-northern-california-amicus-brief