Recent Privacy Class Action Lawsuits Challenge Retailers' Retention of Consumers' Viewing History Information

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It is becoming nearly impossible to keep track of the various laws, regulations and legal theories that plaintiffs' lawyers employ to file increasingly novel privacy-related lawsuits. The United States has historically favored a topical or sectoral approach to privacy regulation that has resulted in a morass of laws and regulations, each designed to protect only certain types of information or classes of individuals, such as data about medical histories, personal finances or minors. A recent spate of class action lawsuits attempts to utilize one such law, the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710, to challenge several prominent retailers' practice of retaining information relating to their consumers' video programming viewing history.

Congress passed the VPPA in 1988 following concerns raised by the release of Supreme Court justice nominee Robert Bork's video rental records during his confirmation hearings. The VPPA affords consumers significant protections with respect to the storage, confidentiality and (ultimately) destruction of any "information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider." 18 U.S.C. 2710(a)(4). While the VPPA primarily prohibits the knowing disclosure of such personally identifiable information, the recent lawsuits challenge the defendants' alleged failure to destroy personally identifiable information "as soon as practicable, but no later than one year from the date the information is no longer necessary for the purpose for which it was collected."

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