judge rawlinson and i are delighted to welcome our friend and colleague the honorable raymond geary from the united states district court for the eastern district of new york who's out here helping us this week and we very much appreciate having you here and like to reserve about three minutes for rebuttal please i will try and help you think you hear well we're here today because netflix is unlawfully disclosing the private viewing information of its subscribers including my clients the plaintiffs and opponents and the rest of the class that the video privacy protection act prevents prohibits video tape service providers from knowing disclosure of personal television or entertainment center to netflix wouldn't you anticipate that that disclosure would be made via that method i guess the only other way to do it would be to prepare a letter or something and send it in the mail or prepare an e mail well the purpose of the streaming service is to view a video a movie and then the consumers are required to connect this netflix ready device to the internet to their account if they don't want to wait in the mail to have a sent to them correct these are two separate services i think maybe at the time we filed the complaint it was one fee for both services now you know the split i think went to that they split it up but but the consumers are paying to stream movies to their televisions and that's the only way the only way to do that is to connect their net flix ready device to their account the purpose is not to access their private information but they can do that can they not if they if they happen to have their  head you're going to have to forgive me because i'm not as technically proficient with the terms but suppose that they have a they use their come their television screen as their home computer  screen in order to send emails and surf the web and so on wouldn't they be able to use that to communicate with netflix if they wanted to about their account they could if they chose use their television as their computer but really that's not that's not what this the service was designed for well but i'm wrestling with this notion of what's wrong with with netflix communicating with its customer via the direct link that the customer ha with netflix and why does that violate the v p the problem here is that consumers really don't have a choice over the disclosures if they want to watch a movie on their television with the netflix streaming service that they paid for they use it the way netfli intended it to views and designed it to be used and marketed it to be used they have no control over whether their personal information is going to flash up on the screen automatically every time they want to watch one of you i take it your complaint is that others besides the consumer who presumably knows which movies he or she has been viewing that that information might be inadvertently seen by others in the room at the time that it's flashed on the screen is that not might be it's inevitable if you if a person wants to watch a movie with anyone else which you know mark netflix markets this product as a social activity but but your argument to us was that the consumer has no choice what would prevent the consumer from simply telling his guests would you mind waiting out in the hall go set this up and when i'm ready to screen the film all invite you in do we really have to hand out when we invite people over to watch movies i think i think that's an extraordinary measure that the p p a doesn't require consumers what a task it the other way why should we impose civil liability on netflix because the consumer is careless with how he or she shares access to information that's being streamed into his home i think netflix is being careless and not allowing the consumer any opportunity or way of protecting this here i think that that's an extraordinary measure and that the p p a doesn't require me to plaintiffs to mitigate netflix's disclosures and netflix knows that these disclosures are inevitable that they're going to happen to design the system that way consent delany silly or exactly i don't i don't think that that congress in vision and plaintiffs consumers having to mitigate or i mean you know what if i have the control i has the account holder have the control and i consent to turning that thing on and we have whatever information it displays my cue my history and so forth why isn't that the end of it how is it any different than if i watched a movie on friday night and saturday morning i want to cross them to my neighbor and said oh i saw a great movie list on netflix how is it substantively any different because you have a choice whether or not you tell that person what you watched last night but he hasn't consented that the third party you know there's the b p a requires the consumers written consent before netflix can disclose to a third party understood but if i if i can i am consenting as i am an exception as a consumer i am receiving the information supposing i do i am i leave it on during the day and i go run an errand and i'm  d and siac been violated by virtue of the fact that the intruder gets to see what movies i've watched in the past month or so i think a burglary is a lot different than i access and cues up a movie there and patrons in the coffee shop can look over the consumer's shoulder is netflix liable for the disclosure under those circumstances if the consumers watching a video by themselves on their computer in public area i think so because it's still the disclosure is still automatic and the consumer has no control they can  how does that fit with congressional intent i mean the legislative history is replete with concerns about what happened during the bork nomination and intentional disclosure by the news media who got a hold of judge bork viewing lists from the local video store and published it that's what led to this legislation right i'm sorry what was i mean one i'm not sure was it might have been a me please the court keith eggleton on behalf of netflix respectfully this court should affirm the decision of the district court the district court got this exactly right by determining under the facts alleged by the plaintiffs and frankly the theory alleged there could no not be a disclosure violation under either the v p p a or the california civil code as you know from the lower court's order that decision was based in large part on how netflix a system works facts that were acknowledged in the complaint and frankly the briefing and were not contested the council just told you that a consumer has no choice how the netflix system work demonstrates just the opposite so if somebody wants to stream netflix as service they have to do a number of things the first thing they have to do is set up an account acknowledged in paragraph eighteen of the complaint they have to go on to the website form an account the way we all do with so many things now establish a password and set up the account the next thing they have to do is decide where they'd like to stream the content they have choices in that regard phones i pads computers and netflix ready devices that can put the content on television what does that have to do with the disclosure our non disclosure obligations it it reflects that it is a disclosure all when the consumer makes that decision and they decide to stream to that device they have told netflix i'd like the content on that device in other words it highlights that it is a disclosure to that consumer that it doesn't town that thinks that it's ok to this calls into other if it does not look at the end of the day what plaintiffs are complaining about is that while there's a disclosure to the consumer they say if somebody else along the way happens to see that that somehow that's a violation of the v p here if if that happens it happens in someone's living room under their complete control well not necessarily someone's living room take my hypothetical right now wife by the coffee shop i actually i agree with your hypothetical and it would be the same answer as  here in fact i think it's it's interesting the way plaintiffs tried to construct the case by focusing just on televisions frankly the theory there and what they're asserting and they're asking you to adopt would not would not be limited to televisions in people's living rooms well i think that w have i think it was and i think it exactly reflects why it can't be a cause of action and of these statutes the consumer is in complete control of whether or not there's a disclosure these are disclosure statutes in order to have a violation there has to be a disclosure that it would be nonsensical to have a consumer in charge of whether or not there's a violation other words the way they tend to their devices what they turn on who they invite over whether they open in an airport or an airplane the consumer essentially is in complete control of whether or not there's a disclosure hence whether there's a violation that i would suggest both as a matter of statutory construction here an application with respect to the exceptions that to the consumer can't be the answer then i don't know i just don't understand the notion of complete control if i have a smart t v yes i choose to turn on the smart smart  access my netflix account but i don't have control who what is shown at the bottom of that screen once i do that that's not i don't have that control that you cases about that is what the case is about but you do have you're right you don't have control in the way it appears on the t v that's exactly right but you do have control and whether you choose to use the service on that device in that way in other words if there is a disclosure that happens after you choose to turn on the t v you stream to your television if there's a disclosure after that point essentially you're making that disclosure by the way you use the device in your own living room this may have no relevancy to the legal question that we have to resolve but is there any technical reason why netflix can't set up through its software a choice for the consumer when he can access to the service would you like to review your prior viewing history to which he could answer no and then stream whatever it is that he's ordering as it is so i too will probably pull a muscle if i try to get too technical here but i think that simple answer is no they could probably construct the system in a lot of different ways and netflix is very proud to have fifty million subscribers the vast majority of whom stream content all the time to all types of different devices frankly i think that issue whether they design it differently or do it differently over time is an issue between they and their customers as to how people like the service what one of one of the ways when you've got a statute and you know that's that's true although again it's the diff the disclosures to the consumer on the device both statutes allow for an exception to that so you can't have a violation i'm just responding to the question that there's there are absolutely ways they could design it differently they make their server they design their service in a way that they believe their customers like and it's at this point they have fifty million people who like it that way and again i'm i'm not sure this is relevant but i ask it anyway is there any kind of a warning that is provided a shrink wrap type warning when the service is set up that this information is going to be displayed every time you order download not not a  shrinkwrap per se but you you may have taken note of the privacy policy which netflix has which subscribers have to agree to as part of what i said they go to the website to sign up part of that is agreeing to the terms of use in the company and runs the privacy policy warn the consumer that the information is going to be displayed correct the page and i believe it's forty something in the excerpt of record with respect to the privacy policy has a paragraph that explains that that the net net flix ready device does not have essentially a password entry that you have to make every time and then it expressly it reminds people of i don't know why it had to but it does remind people to take care of the security of their devices and that they're responsible for the confidentiality of them and the access to them so i'm not sure as a legal matter netflix had to remind people that if you decide to stream to a computer or television in your living room you're some you're responsible for that but they did in that privacy policy so i think they absolutely reminded people of that and the district court took note of that and considered it with respect to the motion although i would submit to you that you don't need to reach it i think that to the consumer exception is plain enough and encompasses what netflix does here when it when it sends its streaming service to the device whipped up by the by the consumer i think it's covered by the exception and i don't believe you need to reach the privacy policy out of the disclosure and i think it is relevant i think it's relevant to the control that netflix has but the question is whether netflix has to do that in order to comply with the b p p and that's why i prefaced my question with with the cautionary note that it may or may not be relevant to the statutory interpretation issue but i think it demonstrates who has control of these disclosures and that the disclosures are actually being made not only to the consumer but to those people who are enjoying the product with the consumer you keep insisting that netflix is responsible entirely for the choice here without acknowledging that the consumer has some say in who gets to look at the and i like it because it demonstrates netflix knowledge of the fact that this is a group activity and they expect people to view it this way and yet they don't give consumers any control over whether their friends and family are going to see what they watched last night on the consumer can ask the friends and family to step out while that's done that so there is some control on the part of the consumer as well a break up the picture already brought up by the time the prince and family need in whatever the viewing room is so he could have snacks in the kitchen bring up the movie in the media room and then call everyone and so there's some control i mean judge bork could have sent a private always there's always something you could think of that might have might be done to to prevent the disclosure but i don't think the bargain is the same way for linux the argument you're making that there is something back and always be thought of to do it that's the argument you're making that netfli should do and that's the dilemma where do where it is the obligation stop with netflix and start with the consumer i think it it it's cute around how is the service what did i pay for when i bought the service how does it work how is it marketed to be worked and the reality i'm not going to i'm not going to be able to prevent people from glancing at my television while i'm setting this up for my children i mean why can't you have you know your g enjoying snacks in the kitchen while you go some of the down low can you posit after all this information has been displayed and you brought up the title of the movie that you're going to watch i suppose you could but again i don't think that the burden under the p p a is put on the consumer to take extraordinary measures or to mitigate and there are situations with children but you want to have you want to have netflix for a thousand dollars every time they do that without any responsibility on the part of the consumer to control who has access to the screen i think if netflix wants to design a product that's going to automatically disclose my private viewing history every time i try to watch a movie that they should take that into account the penalty ok thank you very much that he's just argued is submitted the next