Supreme Court to Decide Scope of 1988 Video Privacy Law in Newsletter Case

The Supreme Court on Wednesday will examine the reach of the 1988 Video Privacy Protection Act (VPPA). The justices will weigh whether the law protects consumers who subscribe to any of a company's products or only audiovisual products. The case could shape current and future lawsuits over digital tracking tools. A decision is expected by next summer.

Michael Salazar brought the class-action lawsuit against Paramount Global in 2022. Salazar subscribed to a 247Sports.com newsletter. The website provides college sports and recruiting news and offers dozens of daily newsletters to subscribers. Salazar alleges Paramount violated the VPPA by installing a Facebook tracking pixel that allowed Salazar's data, including video viewing history, to be shared without consent. Salazar alleges that the information was then used for targeted advertising.

The VPPA makes a "video tape service provider" liable for damages when the provider knowingly discloses a consumer's personally identifiable information without written consent. The law was enacted after failed Supreme Court nominee Robert Bork's video rental history was leaked to the press during Bork's confirmation process. The law defines a consumer as "any renter, purchaser, or subscriber of goods or services from a video tape service provider." Salazar argues that Salazar qualifies as a consumer under that definition. However, Paramount argues that Salazar does not qualify.

A federal judge in Tennessee dismissed the complaint after finding that Salazar's newsletter subscription did not qualify Salazar as a consumer because the newsletter was not audiovisual material. A divided panel of the 6th U.S. Circuit Court of Appeals later affirmed the ruling. Salazar appealed to the Supreme Court, asking the justices to resolve a circuit split over the statutory language.

Salazar's lawyer Joshua Hammack argued in a brief that limiting the definition of consumer would impose a restriction absent from the law's text. Lawyers representing Paramount argued in a brief that the definition should be read narrowly. Paramount's lawyers warned that extending protection to subscribers of all goods and services could trigger extensive litigation. Paramount's lawyers argued that Salazar's interpretation would create an unworkable internet privacy regime with broad, incoherent scope and harsh penalties. Paramount's lawyers argued that protection for viewers of free videos would depend on where those viewers had purchased unrelated products, such as a chicken sandwich or recliner, years earlier.