The following is the text of a complaint, dated on or about 2004.04.19, to the Privacy Commissioner of Canada.

This letter is a complaint against Famous Players Inc., “a division of Viacom Canada Inc.,” 146 Bloor Street West, Toronto M5S 1P3. I submit that Famous Players is in active violation of the Personal Information Protection and Electronic Documents Act (PIPEDA) in numerous respects.

Issue

Famous Players is the only cinema exhibitor in Canada showing movies with captioning for deaf and hard-of-hearing viewers and audio description for blind and visually-impaired viewers. The system Famous Players has adopted is MoPix, a combination of two technologies: Rear Window captioning and Descriptive Video Service audio description. MoPix was developed by and is marketed by WGBH Educational Foundation, Boston.

Certain “equipped” cinemas are outfitted with a large LED display on the auditorium’s back wall that displays caption characters in mirror-image. You the viewer need a reflector to watch and read the captions. The reflector is a simple plexiglas panel on a gooseneck stalk that fits into the cupholder on your seat. You position the reflector so the captions appear in the plexiglas. You can then watch the movie and follow along with captioning.

Those same cinemas are outfitted with infrared emitters. To listen to audio description of a film, you wear an infrared headset that picks up the transmission and plays the narration.

The film print is unaffected; the captions and descriptions are stored and served offscreen by a separate device. Disabled and nondisabled moviegoers sit together in the same auditorium, and anyone who doesn’t want the captions or descriptions need not have them.

The critical issue here is that a deaf or blind moviegoer, or anyone else who wants to watch captions or descriptions, needs to borrow equipment to do it.

Famous Players installed the systems in 2001, and the first captioned and described picture ran in November of that year. Since that time, I have documented that Famous Players is at best inconsistent in its privacy policy in borrowing the reflectors and headsets. Now, in 2004, I argue that Famous Players is in active violation of PIPEDA.

My role

I am a journalist, author, and accessibility consultant who has studied, written about, and worked in the field of accessibility for people with disabilities for more than 20 years. The Atlantic Monthly called me “the king of closed captions.” I wrote the book Building Accessible Websites (New Riders, 2003). I am a nondisabled person, as are most experts in the accessibility field.

I became acquainted with a vice-president at Famous Players in 2001 and I later decided to see all the movies presented with captions and descriptions (and a few captioning-only pictures). That vice-president gave me a Big Card, a Famous Players movie pass, which has been renewed continuously since then. I get into Famous Players cinemas for free, as does a guest if I have one. The card doesn’t cost Famous Players anything, since the marginal cost of a free seat at any showing that isn’t full is zero. I don’t work for Famous Players.

I document my experiences with these accessible movies – everything from what I thought about the actual movie to theatre experiences to captioning and description errors and issues – on my Web site. My friends and I invite anyone who wants to come along to our regular screenings, usually held the Monday after an accessible picture débuts.

As of this writing, I have seen 67 captioned and/or described movies. I can state with confidence that no one else has seen as many. I usually attend movies with the same two friends, but on occasion I have brought along as many as five other people or have gone alone.

I’ve also been known to bring journalists along to MoPix movies, resulting in a large feature article in the Toronto Star on 2002.06.15. Further, after I suggested it and followed through with some research, I persuaded Alliance Atlantis to sponsor captioning and description of Austin Powers in Goldmember in July 2002 for all MoPix-equipped North American theatres, including Famous Players cinemas. It was the first and, to date, only Canadian sponsorship of a MoPixed movie.

In my work as an accessibility consultant, I gave Famous Players three solicited business proposals, all rejected. I acknowledge in advance, and entirely deny, a claim that this complaint represents commercial sour grapes. My two decades of work in the accessibility field speak for themselves. I am committed to more and better accessibility of audiovisual media like movies. The work I do in that field is sometimes paid and sometimes not. That distinction is irrelevant here.

A typical scenario

Let’s walk through a typical scenario for a viewer interested in watching a captioned or described film. The following holds true before or after 2004.01.01.

1. You need to live somewhere close to an equipped auditorium, of which there are 31, to my knowledge, in all provinces save for Newfoundland, New Brunswick, PEI, and Quebec.
2. The movie you want to see has to be captioned (and usually also described). Few movies are. (All showings of a MoPixed movie run with the accessibility features; they aren’t turned on or off on demand in the projection booth.)
3. Go to the movie house, get a ticket, and visit the Guest Services desk.
4. Assuming you can communicate with the hearing people at the desk, ask for a reflector and/or headset.

And now the variation begins. The following is a sample of procedures I have experienced before 2004:

• They hand you the gear right then and there.
• You sign yourself into a book or a sheet of loose leaf in a binder (at which time you can read everyone else’s names and numbers; I always ask them not to do this, and sometimes they don’t).
• They demand your name and phone number and write it down.
• They demand photo ID and keep it while you’re in the movie.
• They demand photo ID and jot down your details from that card, giving it back to you when finished.
• If you arrive in a group, staff may use any of the preceding procedures on each and every person in the group or may let one person represent everybody.

I’ve seen several movies since January 1. Here is merely a sampling of what happened.

• Mona Lisa Smile, 2004.01.05 (SilverCity Yonge & Eglinton, Toronto): Staffmember immediately asks for ID but is also repeatedly interrupted on her walkie-talkie. I ask her if anyone had trained them on the new Privacy Act. Instantly she replies that she has to “get ID” to hand the reflectors out. I repeat my question. She was already writing down my friend’s information when suddenly she was interrupted again by her walkie-talkie, whose voice tells her not to bother taking down any information. She says something along the lines of “I wish they’d tell us these things.” I ask her if we’re the first people to have signed out the gear since January 1, when the Act took effect. No, some other viewers had attended on January 1, she tells me after consulting the book.
• Along Came Polly, 2004.01.22 (SilverCity): I ask the staffmember if he’s going to get us to sign ourselves in. He says that’s the procedure, so I ask for a manager to come over. Coincidentally, a manager arrives spontaneously seconds later. I ask if head office had given any training on the new Privacy Act and I am told twice that they have to take down names and numbers because of “all the money” that has been spent on the equipment. I ask him to take a look at the book and find out if anybody had signed in after January 4, when I was last there. Yes, somebody was signed in on January 9. The manager lets us borrow the equipment without sign-in, but after the show, the manager suddenly knows my name and reiterates that the policy as he knows it is to require showing an ID card, which he would “have to” make me do next time.
• Barbershop 2, 2004.02.11 (Paramount, Toronto): As usual, I ask the staffmember if he’s going to get us to sign ourselves in. He pulls out the loose-leaf page from the binder and turns it toward us on the counter. He tells us we can make up whatever name and phone number we want. Later I ask a manager if they’ve had any training on the Privacy Act from head office. No, she replied, nobody’s come down here to talk to us about that. Or phoned or E-mailed? I asked. She shook her head.
• 50 First Dates, 2004.01.16 (SilverCity): The staffmember demanded we each sign ourselves in. (He walked over to ask a manager what to do. The manager, barely looking up from his mop, apparently told him to make us all sign in.) I was accompanied by three friends. They signed themselves (and me) in, not necessarily under true names. I later had a long discussion with the theatre’s general manager, who claimed that Famous Players’s publication of a policy on its Web site “authorizes” him to force me to show ID.
• Kill Bill Vol. II, 2004.04.19 (Paramount): The answer to the question “What’s today’s sign-out procedure?” was “You write down your name and number.” We were handed a loose-leaf binder, which we could peruse at our leisure, in which my friend wrote down his name and number. The desk was completely unattended at this point and I snapped a picture for posterity [added here to this Web publication, but not included in the original complaint].
  

The problem

Famous Players, a multi-million-dollar subsidiary of a multi-billion-dollar corporate juggernaut, likes to contend that some kind of signout of equipment is necessary to ensure that the equipment gets returned. Loss or theft, then, seems to be an issue. I’ve also been told the equipment is “expensive.”

Famous Players’ actions seem immediately sensible to someone who doesn’t know or care about accessibility or privacy. Those people probably couldn’t even stand to watch a captioned or described movie, but they sure are concerned about theft. Nonetheless, sensible is one of the many things the movie chain’s actions are not. Here are the facts.

1. The caption reflectors and description headsets are useless outside an equipped auditorium. (In some theatres, the same headset is used for amplified sound for hard-of-hearing people. In that case, the headset is useful in other auditoriums in that building but is useless anywhere else. One can imagine an exception: A viewer could steal a headset and use it in another Famous Players house.)
2. Caption reflectors are huge metal-and-plexiglas structures that resemble scythes. They’re hard to smuggle out in a backpack and would be pretty noticeable on the bus ride home. Anyone who stole a reflector would probably have started out with a pitted and scratched reflector (as most of them already are) that would end up more pitted and scratched.
3. Famous Players has a monopoly on MoPix movie presentations in Canada. If you’re deaf or blind, you can have any colour you want as long as it’s black and can visit any theatre you want as long as it’s a Famous Players. This audience has suffered discrimination in the moviegoing experience and now has a limited capacity to enjoy films on a basis equal to nondisabled people. Deaf or blind moviegoers have a strong interest in not causing any kind of fuss lest Famous Players pull the plug on the whole system, leaving them with no accessibility of any kind.
4. Some loss of equipment is inevitable with long-term usage by dozens or hundreds of people. I forgot a description headset in an auditorium once, but I managed to go back and find it. Loss is simply a cost of doing business.
5. Theft is virtually unheard of. I have asked repeatedly for over two years if anyone really has ever stolen a headset or a reflector, and in every case but one there was no answer. In the other case (a conversation with the general manager of SilverCity Yonge & Eglinton on 2004.01.16), I was told that some equipment was “missing.” (He wouldn’t tell me how many pieces.) Let’s take this at face value for the moment.
6. The equipment used by patrons isn’t expensive. The LED display, emitters, and controller box are expensive, but the reflectors and headsets are not. A sworn affidavit by Larry Goldberg, director of the Media Access Group at WGBH Educational Foundation, in a U.S. civil lawsuit, states (at §12): “The clear plastic viewers cost $75 each and have a useful life of approximately 5 years.” While there is no published estimate of headset cost, I believe it to be comparatively low even though they are obviously more complicated than plexiglas panels.
7. Famous Players keeps a supply of headsets and reflectors in each equipped house. Numbers quoted vary from six to 15 units of each. Supply exceeds demand. For preplanned group outings, one theatre can send some of its reflectors and/or headsets to another.
8. An adult admission price at some theatres approaches $14, meaning that a reflector costs the equivalent of six admissions. The four equipped auditoriums at SilverCity (only two of which can generally run MoPix movies at any time) have capacities of 400, 331, 447, and 234 people. The cost of a reflector represents 6 out of 1,452 attendees for a single screening in all four auditoriums (0.4%). At best, the price of this portable accessibility hardware is negligible.
9. Famous Players has no discernible program or policy of repair and replace-ment of defective or damaged equipment. I have documented for more than two years that reflectors are scratched, pitted, and smudged (and in fact my friends and I now inspect reflectors beforehand and only accept ones in decent condition). Some reflectors don’t stay upright. I have experienced one headset in poor repair. I have repeatedly complained about this issue at every level of the Famous Players organization and it remains unaddressed. Reflectors given out for the first MoPixed movie were already scratched and smudged and the problem has never been fixed. Famous Players demonstrates through its actions that it seems to care very little about the actual equipment.
10. There are ongoing issues of installation and repair of the LED displays and emitters. Even after repeated complaints, emitters are positioned to block captions or are misinstalled so nobody can hear descriptions; pixels in the LED displays are dim or missing; and headset audio is staticky, among other problems.

To sum up, then:

• Famous Players has a spare supply of reflectors and headsets.
• In more than two years of use, only a few items have gone missing, and it cannot be proven they were stolen. (There is no evidence of a police report.)
• Reflectors and headsets are inexpensive, trivially so in comparison to capital and operating costs and even in comparison to other necessary MoPix equipment.
• Deaf and blind moviegoers and others have no use for the hardware outside equipped buildings. They have an interest in keeping the system intact.
• Famous Players acts slowly, and typically doesn’t act at all, to address equipment damage and breakdowns.
• Deaf and blind moviegoers have no choice but to visit a Famous Players theatre. Famous Players has an inconsistent (and now also arguably unlawful) policy of demanding personal information from its captive audience in return for its monopoly presentation of accessible films.

Essentially, Famous Players staff are penny-wise and pound foolish. The philosophy seems to be “We value our chunks of plastic more than we value you. We’re the only game in town and you’ll do as we say.”

Addressing the real problem

Famous Players staff go to great (if inconsistent) lengths to police the lending of reflectors and headsets, yet the problem of loss or theft is virtually nonexistent. All that trouble failed to prevent a few “missing” pieces at SilverCity, which could not be provably associated with theft. Famous Players cannot prove that reflectors and headsets are so attractive to thieves that their current methods are the only ones that work.

Retention of information

I would add that the theatres’ on-again, off-again demand to retain visitors’ ID cards is an astonishing infringement of privacy rights and an accident waiting to happen. It leaves the door wide open to identity theft in several senses of the word. Famous Players simply does not need to know our driver’s-license or health-card or passport numbers just so we can enjoy a movie accessibly.

The fact that Famous Players staff sometimes insist on holding one’s ID card is bad enough. But several theatres permanently record people’s names and phone numbers – and show that list to other patrons.

Complaints

Famous Players has received many verbal and E-mailed complants about sign-in policies. Most, if not all of them, came from me. Perhaps no one else has complained. Any such absence of complaints from other viewers is unpersuasive:

• Disabled moviegoers have an interest in not complaining. They have no other options if they want to watch first-run movies with captions and/or descriptions. It is not in their interests to rock the boat.
• Deaf and hard-of-hearing moviegoers may have a hard time communicating with hearing staffmembers.
• Famous Players literature claims it operates a TTY line, but calling that number, 416 934-7917, leads to a voice line (in fact, it leads to voicemail every time I call it). A deaf person could call Famous Players through the relay service, but there is no directly accessible method to leave a telephoned complaint.
• Blind and visually-impaired people would probably find it difficult to learn and record the mailing address of Famous Players, and some would find it difficult to compose a printed letter. Many people could, however, send E-mail.

When your entire ability [to go to] the movies depends on it and when it’s hard to communicate with the company, it’s no surprise that complaints would be few and far between. In any event, this is a complaint.

Published privacy policy

As author of Building Accessible Websites, I have expertise in Web accessibility. I have given Famous Players free expert advice that their Web site does not provide valid HTML and fails the Web Content Accessibility Guidelines in material respects. It is likely inaccessible to many people with disabilities, including blind people. Due to inept authoring, it’s impossible even to get past the language-choice splash screen in some browsers. Famous Players reacted with great defensiveness at the embarrassing, much-too-late realization that its expensive Web site is noncompliant and inaccessible, but it has refused to bring its site into compliance.

Buried in its inaccessible Web site is the following statement in its privacy policy: “We may require identification to be provided.... We may also require identification such as a valid driver’s license or similar ID to provide you with special theatre equipment, for example RWC/DVS equipment for our blind or visually-impaired or our deaf or hard-of-hearing theatre guests.”

Hiding this declaration on a Web site that many people with disabilities can’t even read hardly constitutes fair disclosure. In any event, Famous Players arrogantly acts as though PIPEDA permits them to issue any privacy policy they wish as long as they publish it somewhere.

PIPEDA violations

I have attached a schedule of PIPEDA violations. Note in particular my request that the Commissioner initiate an audit. You can do so quite easily by simply visiting the Coliseum Ottawa theatre.

Privacy cost

I am stating now for the record that I feel my rights and dignity have been infringed by Famous Players’ inept, unjustified, picayune, and now arguably illegal signout policies.

Famous Players seems to be undergoing a war of attrition against me specifically, one that they are winning. I have sharply curtailed my viewing of MoPixed movies. One reason is the fact that I am sick and tired of dealing with Famous Players petit fonctionnaires who, in my opinion, violate my legal rights and treat me like a problem. Just imagine how bad it is for a disabled person who finds it difficult to communicate or someone without quite as much backbone as I have.

Reprisals

I’ve received telephone calls from Famous Players – from [a vice-president; redacted] and [a manager; redacted] – complaining about the way I talk to their staff. Some of those complaints centre around the way I deal with frontline staff concerning ID and sign-in requirements. I was, of course, sticking up for myself and my rights. It’s unsurprising that Famous Players might not like being told they’re wrong; what’s surprising is the gall they have to call me up and say so post-facto. There is some misunderstanding that because I have a Big Card I am somehow held to a lower or higher standard than any other moviegoer.

I expect Famous Players to enact reprisals for filing this complaint, which, conveniently enough, PIPEDA prohibits only if the complainant is an employee. If that happens, I will publicize this complaint and all correspondence related to it.

Alternatives

Many alternatives are available to Famous Players. If the intervention of the Privacy Commissioner is what it takes to place those alternatives on the table and bring the company into compliance with the law, so be it.