YouTube: Public or Private?

One of the most interesting things about the case of Viacom ordering YouTube to hand over its information on users is that the act of watching videos is being referred to as a private act. Is it as private as our social security and credit card numbers? Half as private? Twice as private? Where did the idea of what you watch being private come from? Here's one answer to that last question:

"'(the right to watch videos in private) is protected by the federal Video Privacy Protection Act, 'Mr. Opsahl added. Congress passed that law in 1988 to protect video rental records, after a newspaper disclosed the rental habits of Robert H. Bork, then a Supreme Court nominee."

One might have guessed that Bork's rental history was similar to that of Clarence Thomas. Actually, Bork, who's nomination was rejected, had fairly tame tastes while Thomas, who serves on the court today, claimed to have watched some less mainstream fare.

The Electronic Frontier Foundation argues that the act of watching a video on YouTube is similar enough to the act of watching a video cassette to qualify that act for protection under the video privacy protection act. I would argue that YouTube is not very similar to watching videos in the privacy of your own home. There are so many things about the site that make it feel public - the comments, the favorite lists open to the public, the usernames. It is precisely those attributes that set YouTube apart form existing online video sites and led to its massive success. YouTube became what it is today b/c it is not as private as watching TV. It is communal and public.

Watching a video on YouTube is NOT (and never was) a simple private act. Opsahl makes the classic mistake of thinking that just because YouTube has video, like VCR tapes, it is used in the same way and has the same relationship to publicness/privateness as its visual predecessors. He is not alone in the error of attribution. Viewers, lawyers, privacy advocates, and even users may mistake watching YouTube for a private act, but be assured, it is not.