Treading water, sinking like a rock, there are all manner of swimming metaphors that could be applied to the last few months of Netflix’s life. Now, they are perhaps facing a whale of a task. They are ready to challenge the Video Privacy Protection Act and claim that part of it is unconstitutional. Sounds like the waters might be chummed up for a shark feeding frenzy!

Netflix & User Data

If you remember, Netflix is being slapped with a massive class-action lawsuit over their retaining records of people’s viewing habits even after accounts have been closed and deleted. Now, Netflix is crying foul and stating that the $2,500 per violation is excessive and stripping them of due process. Of course, detractors would say that Netflix did the same thing in terms of the storage of data in that they have no easy way to request all data be deleted from all of their servers.

For up to two years after you have canceled your account, much like I did earlier in the year when they sprung the surprise 60% price increase (I never even had the DVD option, I canceled on principle and lack of content) Netflix will retain your viewing records and data. Seems excessive no?

Now the law in question is older than video on the Internet, and dates back some 20 plus years when the rental records of a U.S. Supreme Court nominee were printed by a Washington newspaper. Personally, much like dental and medical records, I think that the details of exactly what we watch, read and listen to are our own private affairs and not to be used for anything except keeping us apprised of what we’ve watched and making recommendations and even then they really don’t even need to track specific titles but just broader categories.

Netflix Challenges Privacy Fine

Netflix’s problem with the suit isn’t that they did it. In fact they haven’t argued otherwise. They are arguing that the $2,500 minimum per record kept is beyond reason as the consumers can’t cite a financial impact.

But isn’t the fine just that? The price for violating the law? When a speeding ticket is given, it has a set price because you broke a law and that is how much the penalty is set at. If I speed a million times and get caught, I will pay a million speeding tickets (and probably not have a driver’s license ever again). They should be more concerned about the millions they might be forced to spend in new business practices, like giving consumers the ability to remove all data about their accounts via a simple web request. I mean all records, even those that might be archived off site, in periodic backups etc. Because let’s face it, just deleting from an active server, is not deleting them at all. It’s just making them unavailable on the live production environment I imagine.

However, if a million former Netflix users were to be awarded $2,500 each that would simply bankrupt the company. Perhaps, they might, ironically, offer that much in credit on the service. At $7.99 a month it would be like 313 months of service, roughly 26 years, per user.  Perhaps, Netflix will offer to make payments on the fines, at $7.99 a month per user. That might keep them from folding up shop and shutting down and again, have a bit of irony in it.

Should Netflix Have To Pay?

I can’t say that I would like to see Netflix close up shop because of this, after all they have done wondrous things for online video. But I would like an example to be made of them because trying to get your information deleted on any kind of web service you use is a massive pain in the butt. If a large company like Netflix sets a precedent here and loses, and is forced to then implement very easy ways for consumers to delete all pertinent data of a private nature it could pave the way for new legislation and court cases to make that mandatory for all companies.

Then again, this sort of thing has been going on forever. What do you think all those little rewards cards you have attached to your keys are for? Giving you a discount because you shop at the same place? That’s just the hook, the bait and switch is all the purchasing information they are tracking on you which then, quite often, gets sold off to others and results in mounds of junk mail and coupons that magically seem catered to your shopping habits.

I hate junk mail and I firmly believe that things like my book, film, music and food purchasing is my private information (hence why I use my mother’s rewards cards so it gets lumped into her junk mail). I believe that no agency, government or otherwise, should be allowed to track, record or maintain records of that nature which they then use for all manner of profiling. If I happen to have a dozen copies of Catcher in the Rye, it’s my business. If I have a copy of Mein Kampf (I do) along side a copy of the Satanic Bible (I do) and the Satanic Verses, (yep) again, it’s my business. I might peruse how-to’s online for making homemade incendiaries, but it could simply be for my Halloween display and not for any villainy. That’s the whole point of living in a free democracy, we are supposed to not be under 24-hour surveillance.

Tracking all of that for any kind of profiling in a criminal sense violates American freedoms and treats us all like criminals doing away with innocent until proven guilty, much like a new law trying to be passed in Madison, Wisconsin that would track all sorts of personal data when buying/selling second hand stuff.

Netflix, isn’t really doing that. They’re simply trying to keep records on hand so that they can better market to lost subscribers. Again, I think it’s wrong, solely because you can’t opt out easily, and I think they and every company who collects any kind of information of that nature, should be required, by law, to remove it upon request of the subscriber. In fact, it should be an option upon cancellation, “do you want all data pertaining to your account deleted?” You click yes and the process begins to remove it.

As it sits right now, when you cancel your account with Netflix and numerous other online services, nothing of the sort is done, because they hope to continue to target and re-target you with email and advertising that will attempt to draw you back in. Netflix is hoping to say that just retaining records is not against the law, but Redbox lost that argument already so there is a precedent. Netflix is also hoping to not have to pay for its violation of the law, but has yet to profess innocence in the matter, instead attempting to attack the constitutionality of the law itself. That surely makes them look guilty does it not?

The best they can hope for and what consumers should truly aim for in this lawsuit, is a precedent on the deletion of personal records upon request. They should aim for automated systems that will assure those things are done and for strict guidelines on how long data of any sort can be retained by a service once the user has requested their account be canceled and data be deleted. If one were to ask me I would say immediate, but that is not always prudent and I know that. It’s just a knee jerk reaction to my privacy being violated. However, a more realistic target of 3-6 months would be acceptable.

Does The Same Law Apply To Me?

Why am I telling you all about this? Am I just spouting more crazy privacy rights and anti-Netflix rhetoric (woo there goes tinfoil hat touting Chris again!)?

No. I am telling you because, in some way or form you too are probably collecting data on your users, viewers and subscribers. You too could be the focus of a lawsuit one day and while I am no lawyer (we do have some who read and I would be interested to hear what they say), I am a consumer and a feisty one at that.

I have been in IT and Internet-related work for a very long time. I know that once you connect to a network all manner of data is being collected on you. I understand that, and I am fine with it. However, I also believe that to keep the governments and corporations of the world from tracking too much and especially certain types of data, some things should be illegal. I believe that consumers and everyday citizens should have the right to stricter control over their personal data and I believe that, upon request, it should all be deleted from a service because I am not a criminal and I am not under surveillance. There is no court order that states all of my behaviors, buying and viewing needs to be tracked, recorded and analyzed, and most likely, neither are you, therefore we should be be treated as such. Well, now there might be (I joke).

Netflix has the budget and the lawyers to fight something like this. Many of you may not, being in SMB or freelancers. So when you begin collecting data on your users you might work on ways to keep it as anonymous as possible yet still effective. I bet Netflix could have easily dodged this by simply collecting the most basic of data about user behaviors. Things like genre, actor, director and studio instead of exactly what each user has been watching. I would have far less problems with that sort of tracking because I know that it would be used to recommend other content I might like plus, Hulu does it and I still give them money. Then again, I don’t know what Hulu tracks, but now, I’m going to send an email and ask them.