Hulu.com, an online video provider, is currently facing a lawsuit regarding personalized advertisements based on user data. This is relevant to First Amendment rights in interactive media and government controls on information, as vague laws enacted for one purpose may have later unintended effects. One could even argue that parts of intellectual property law itself are unconstitutional as it bridges freedoms of speech, especially in today’s new media where its enforcement is performed by inflexible automated agents (a recent example is the live broadcast of the Hugo Awards being shut down by copyright infringement software mid-through the ceremonies because it showed clips of the TV nominees).
It is important to understand that the laws put in place will affect the future of technology and human activities associated with it. The Hulu lawsuit raises questions about how much users are and should be aware of the inner workings of corporations, and how much (or how little) the government should intervene on behalf of its people. Furthermore, problems arise from laws governing technology with respect to innovation; it is important to ensure that the Internet is as decentralized as possible, allowing content providers freedom of distribution, and allowing users to make educated choices about what information enters their homes.
If we strive towards an open and decentralized Internet, we need to consider what constitutes “open access”, and who is ultimately responsible for upholding it. Furthermore, if the Internet is considered fundamental to the protection and proliferation of “speakers”, does it mean that the government has a responsibility to manage the value chain from content creation, to content distribution, to content consumption? We should also consider the opinions of users, and how their choices can be better reflected. Some Hulu users may enjoy the benefits of targeted advertising, while others may prefer to keep their data anonymous or not accessible.
ACLU v. Mukasey was concerned with the possibility that vague, overbroad laws targeted at a small population (the adult entertainment industry) would have potential applicability across a much broader swath of organizations and the court sought a solution that was most effective with least restrictions. The lawsuit filed against Hulu is subject to the alternative effect: a 1988 law intended to protect a specific case (the privacy of video rental records) is now impacting a modern online content distribution system. Intervention from a prior medium affects Hulu’s ability to evolve its business model and the services it provides to its clients (both viewers and advertisers).
Specificity in law can help to avoid confusion in such cases. In ACLU v. Mukasey, we’ve seen that one of COPA’s core problems was that it was not “narrowly tailored”. We can certainly find similarly vague language in The Video Privacy Protection Act that allows it to apply to Hulu now:
“(4) the term ‘video tape service provider’ means any person, engaged in the business, in or affecting interstate or foreign commerce, or rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials, or any person or other entity to whom a disclosure is made under subparagraph (D) or (E) of subsection (b)(2), but only with respect to the information contained in the disclosure.”
It also raises many questions about the role of the law itself. Hulu’s users technically agree to the “Terms of Service”, including the collection of behavioral data–but when was the last time we read all of the text before clicking on “Agree” to use an online service? We can’t recall. If users should be aware, how far should the government go to protect them? If the court found that wide availability of filters was sufficient in the case of Child Online Protection Act (COPA), would it suffice for Hulu to provide clear ways to opt out?
While opting out may be a less restrictive solution, the Hulu case still begs the question of whether or not a law that is decades old (almost ancient history by today’s technological standards!) applies to new technology generations later. If the answer is yes, it could potentially start a snowball of similar legal issues for other Internet companies, similar to how the potential impact of COPA was perceived by the courts. Timeframes are also important with respect to the pace of technology development and the current multi-year appeal process, as the speed of change can significantly impact assumptions. We need look no further than COPA’s 11-year lifespan: it was passed in 1998, went through years of appeals and never took effect, then was completely struck down in 2009.
Needless to say, too much regulation could easily wreak disastrous effects on innovation and product development. If companies and other legal entities are penalized for violations of laws which were written in the past, user experience could become severely limited, and the ability to develop new products or start new companies becomes more restricted. Ultimately this has an impact on the quality of interactive media as a whole–the question is when and if consumers are willing to pay the price for mandated protection.