Editorial: When lawyers apply a law aimed at VHS rentals to the streaming world of today

Yahoo

07-04-2025

In the 1980s, when the late Judge Robert Bork faced Senate scrutiny over his ill-fated nomination to the U.S. Supreme Court, a small independent newspaper published a list of his rentals at a local video store. The movies he and his family rented were perfectly innocuous, but Congress lost its collective mind over the idea that its members' rental histories could undergo public scrutiny and swiftly passed the bipartisan Video Privacy Protection Act.
Fast forward to 2025, and the same law is being invoked to attack Weigel Broadcasting, a Chicago media company said to have shared data from its free MeTV platform with the parent of Facebook to make online advertising more effective. Like other well-intended laws aimed at protecting consumer privacy, the 'Bork Act' has become a tool for class-action lawyers playing 'gotcha' with the routine marketing efforts of legitimate businesses.
For decades, lawmakers have struggled to protect privacy rights in the face of technology that advances at light speed. MeTV, for instance, is being targeted under a law written to protect Americans against disclosures from 'video tape service providers' — the 'Be Kind, Rewind' people who long ago went extinct.
Springfield lawmakers opened a new front in 2008 when they approved a law restricting the use of biometric data such as fingerprints, retina scans and facial recognition. While this page supported the effort to rein in businesses abusing such incredibly personal information, the result has been a feast for plaintiffs' lawyers, curbing innovation and potentially depriving Illinois residents of cutting-edge products and services in the future.
By now, Americans should be aware that practically every keystroke on every website could potentially be tracked by those with an economic interest in their online activities. Typically, they get no more disclosure than the fine print found in 'terms and conditions' that hardly anyone reads when creating an account or logging in. Yet most Americans are still surprised to learn how much of their personal information is being collected. And once it's given away, there's no getting it back.
The public obviously has an interest in this fraught topic. Individuals need protection from unwanted surveillance and identify theft. At the same time, businesses should be able to use data to improve service and reduce costs, as well as make money. No comprehensive federal standard exists, and to get a glimpse of how existing rules can backfire, consider the lawsuit targeting MeTV, which the 7th U.S. Circuit Court of Appeals just reinstated after a federal judge in Chicago dismissed it.
Weigel's MeTV provides access to classic shows from the 1930s through the 1990s at no charge to its viewers via its website and app, making money by selling ads. The class-action lawyers allege that if someone who was signed into Facebook were to use the same browser to access MeTV, the accounts could be linked without the explicit consent supposedly required under the Bork Act.
Similar cases have cropped up across the country, stretching the 1988 law to target not just streaming companies, but practically any companies that post videos on their websites. America evidently leads the world in producing entrepreneurial lawyers eager to expand liability in ways never anticipated under the statutes they invoke.
Can we all agree that routine business practices should not suddenly get turned into federal cases? Especially not cases based on rules written for a different era? And hastily written rules, at that?
The same overreach has happened with laws originally aimed at protecting consumers in credit reporting, debt collection and just about anything involving their telephones. The resulting litigation sometimes seems more like a stickup than a worthy defense of injured parties.
Predictably, the case against MeTV has turned on parsing the antiquated language of the Bork Act. The mighty judges of the 7th Circuit come off as rather lame when they define MeTV as 'a video tape service provider' and the plaintiffs who watch a free service as 'consumers,' then pompously defend these outdated definitions by saying, 'Linguistic imprecision is part of the human condition.'
Other appellate courts have wrestled with the same vague language in the Bork Act and come up with incompatible conclusions. In 2013, after Netflix got stung by exploitative litigation, Congress amended the law. Obviously, it didn't do enough to make the rules clear and relevant in today's digital landscape.
America needs strong principles to protect online identity and privacy. It also needs to ensure that its businesses can adopt new technology without getting dragged into expensive and counterproductive court battles like this one.
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