The Extraordinary Extension of the Video Privacy Protection Act: Why the “Ordinary Course of Business” of an Analog Era is Anything but Ordinary in the Digital World

Authors

Elizabeth Gemdjian

Abstract

In the last dozen years, a wide range of companies—from streaming platforms to consumer goods brands to nonprofits—have been the target of lawsuits under an idiosyncratic, outdated law: the Video Privacy Protection Act of 1988 (VPPA). The VPPA focuses only on consumers’ privacy related to video content; it prohibits a party that has data on a consumer’s video viewing history, along with personally identifiable information about that consumer, from disclosing that information without the consumer’s consent. While the VPPA did not get much attention in court until recently, in the past decade, the volume of VPPA-related claims has exploded. This Note argues that the VPPA’s second life has overextended the law not only beyond Congress’s initial intent but also without due consideration for the vastly different business models and privacy threats relevant in the digital era. The Note focuses on the ordinary course of business (OCB) exception in the VPPA and courts’ lack of attention to this lynchpin term in the statute. Further, this Note examines modern companies’ business models to determine how disclosure of consumers’ data to certain third parties should be considered within their OCB. Finally, this Note evaluates possible solutions for how Congress should modify the law, as well as how courts should modernize their interpretation of OCB given the current offerings available to consumers for consuming video content, before ultimately proposing the creation of a federal privacy statute as the best solution.

Recommended Citation

Elizabeth Gemdjian, The Extraordinary Extension of the Video Privacy Protection Act: Why the “Ordinary Course of Business” of an Analog Era is Anything but Ordinary in the Digital World, 90 Brook. L. Rev. 553 (2025).
Available at: https://brooklynworks.brooklaw.edu/blr/vol90/iss2/5