Court appears likely to allow internet suit based on decades-old video privacy law to go forward

The Supreme Court on Wednesday seemed likely to let a lawsuit brought by a Tennessee man alleging that a website owned by entertainment giant Paramount Global violated a 1988 video privacy law when it shared information with Facebook go forward, at least for now. After nearly 90 minutes of oral argument in Salazar v. Paramount Global, the justices appeared poised to agree with Michael Salazar that the law, the Video Privacy Protection Act, applies to any consumer of the products sold by a company that provides videos. Although some members of the court expressed concerns about the possibility that allowing Salazar’s suit to proceed could open the door to lawsuits against a broad swath of U.S. companies, those concerns appeared to be assuaged in part by the prospect that other provisions of the law could serve as a check on such suits. Moreover, some justices suggested that companies could easily avoid suits in the future by obtaining their customers’ consent to share their personal information.

The law before the court on Wednesday has its origins in the 1987 battle over the nomination of Judge Robert Bork to fill the vacancy left by the retirement of Justice Lewis Powell from the Supreme Court. A Washington journalist, Michael Dolan, obtained and published a list of the videos that Bork had rented from his local video store.

Bork’s nomination failed, with 58 senators voting against him and only 42 for him. That likely had little to do with his taste in movies, which included (as Dolan later recounted) “whodunits and Brit films, costume drama and otherwise.” But Dolan’s article spurred Congress to enact the Video Privacy Protection Act, which bars a “video tape service provider” from “knowingly disclos[ing], to any person, personally identifiable information concerning any consumer of such provider.”

In 2022, Salazar subscribed to an email newsletter distributed by 247Sports.com, a Paramount-owned website that covers college sports recruiting. Salazar says that he watched videos on the 247Sports.com site while he was logged into his Facebook account. Paramount, he says, then used a code known as a Pixel that it had installed – without Salazar’s consent – on 247Sports.com to provide Facebook with information about the videos that Salazar had watched on the site.

Salazar filed a class-action lawsuit in federal court in Nashville, Tennessee, alleging that Paramount’s disclosure of his video-viewing history without his consent violated the VPPA. He asked the court to award $2,500 in damages (the maximum available under the law) for the alleged violation of the VPPA to him and the other members of the class, as well as (among other things) punitive damages and attorney’s fees.

U.S. District Judge Eli Richardson dismissed Salazar’s case. He ruled that, for purposes of the VPPA, Salazar was not a “consumer,” because a “consumer” must be “‘a subscriber of goods and services in the nature of audio-visual content.’” Salazar could not be a “subscriber,” he wrote, because the 247Sports.com newsletter was not “audio-visual content.”

A divided U.S. Court of Appeals for the 6th Circuit upheld that ruling. Writing for the majority, Judge John Nalbandian wrote that although, standing alone, “the expression ‘goods or services’ is not limited, its association with surrounding words cabins its meaning. The full definition of ‘consumer’ in the statute does not encompass consumers of all ‘goods or services’ imaginable, but only those ‘from a video tape service provider.’”

Salazar came to the Supreme Court last fall, asking the justices to weigh in, which they agreed in late January to do.

On the one hand, although the question was not actually before them, some justices were skeptical that Paramount Global fell within the definition of “video tape service provider” at all. Justice Clarence Thomas was the first to make this point. He told Joshua Hammack, who represents Salazar, that the statute only applies to an entity that rents, sells, or delivers “prerecorded video cassette tapes or similar audiovisual materials.” How, Thomas asked, would that extend to videos streamed over the internet?

When Hammack countered that the law does not require a tangible object, but instead also covers videos that someone plays on their phone or at their house, Thomas suggested that streaming a movie on TV might be closer to traditional television (which is not covered by the VPPA) than picking a video up from a movie rental store.

Thomas made the same point with Paul Clement, who represents Paramount Global, asking how 247Sports.com qualifies as a video tape service provider. It does not naturally seem, Thomas said, to be in the business of providing videos.

But Clement also indicated that the definition of “video tape service provider” sweeps more broadly than companies whose sole business is selling or renting video tapes. When Congress enacted the VPPA, he noted, it “did make it pretty clear” that a department store that sold videos would be considered a video tape service provider.

Justice Amy Coney Barrett echoed Thomas’ question, asking Hammack why the videos that 247Sports.com played on its site made it analogous to a 1980s-era movie-rental store and therefore a “video tape service provider.” She appeared unpersuaded by Hammack’s contention that when 247Sports.com plays videos on its site, it has a “profit motive,” telling him that “basically every other business” with a website has a profit motive. “[I]f I’m on Nordstrom’s website,” she said, “and I click to … see the model show me what the shoes are going to look like … that’s a profit motive.”

Justice Samuel Alito also appeared doubtful at times that Paramount Global was a “video tape service provider,” telling Hammack that the VPPA was a “law that is based on the technology of the 1980s.” He questioned whether Paramount was selling or renting videotapes, and what it meant for a product to be “similar” to videotapes. “[I]t is not similar,” he noted, “in the sense that you go to a Blockbuster store and get a VHS tape.”

Chief Justice John Roberts, who was relatively quiet during Wednesday’s argument, suggested that Salazar’s interpretation of the VPPA was inconsistent with Congress’ goal of protecting a consumer’s video-viewing history. He harkened back to what he described as a favorite hypothetical of retired Justice Stephen Breyer, involving a sign that proclaims “no pets in a park.” Does that mean, Roberts queried, that someone who has a pet snail in his pocket can be prosecuted, or does it mean that we should look at the purpose of the rule?

Justice Brett Kavanaugh pressed both lawyers on a key argument made by Paramount Global: whether allowing Salazar’s lawsuit to move forward would open the floodgates to lawsuits against all kinds of businesses that stream videos on their websites.

Hammack stressed that federal trial courts have ruled that businesses such as, say, Chick-fil-A are not “video tape service providers” and therefore not subject to suit under the VPPA.

That response prompted Kavanaugh to ask Clement how the court should think about what Kavanaugh characterized as the “sky-is-falling concern” when Paramount Global could still prevail on two separate questions that are not actually before the court – what constitutes a “video tape service provider” and whether the kind of information that Paramount disclosed to Facebook qualifies as “personal identifiable information.”

Kavanaugh then suggested that a “very easy solution” to the problem facing Paramount Global and other similarly situated companies would simply be to obtain their customers’ consent before disclosing any information obtained from them.

Justice Elena Kagan made the same point, telling Clement that a company could avoid liability under the VPPA in two ways: first, by getting consent; and, second, by ceasing the practice of selling people’s personal information.

Kagan also indicated that, in her view, this case was precisely the kind of case that Congress intended to cover in the VPPA. She described a scenario in which a judge watched many videos of women wrestling on a sports website like 247Sports.com, with the potential for embarrassment if that video-viewing history were disclosed. “[C]ouldn’t this case kind of be the paradigmatic” example, she asked, of a case to which the VPPA would apply?

Justice Ketanji Brown Jackson appeared sympathetic to Salazar’s position. She told Clement that he had “a line-drawing problem.” The point of the VPPA, she said, “was the unlawful disclosure without consent of personally identifying information.” But under Paramount Global’s interpretation, she continued, the application of the statute would hinge on “what particular item the consumer purchased” from the video tape service provider. “And I don’t understand why that should be the dividing line or why that makes any sense in this concept.”

Barrett also questioned whether Salazar has a legal right to sue, known as standing. She emphasized that Salazar’s information had not actually been disclosed to a person, no matter “what this Pixel thing is.”

Hammack pushed back, responding that Salazar’s video-viewing history had gone to Facebook, the world’s largest social-media company.

Barrett raised the question again with Clement, asking whether Paramount Global conceded that Salazar has a right to sue.

Characterizing the information that had been disclosed to Facebook as “gobbledegook,” Clement offered to provide additional briefing on the question of whether Salazar could bring his lawsuit at all.

I tend to agree with the Plaintiff. Had the law omitted the word “tape” and just said “video provider” then it would apply to Netflix, Youtube, and this 247Sports.com website among very many others.

What appears to me hidden under all this is the ability for content providers to share and sell your viewing habits to third parties. It is partly a privacy matter, partly a commercial matter, and somewhat even a political/social matter. These pixels are installed everywhere and the money is not just in the ad sales but in the aggregated data sales. Just like WalMart knows if you buy cookies you are 64% likely to buy milk, too. Though I also probably assume that these streamers already make clear that they are going to use and sell the heck out of any data they can possibly collect from you and sell them to Satan if they want to.

I’m all for stopping companies from reselling your info. But the law is written as “video tape” and expanding that to streaming 40 years later is a legal jump requiring judges to guess at the writers intent. If he had rented videos from sports net you’d probably have a stronger argument. But streaming live stuff (I presume these were sports games or shows) is closer to broadcasting or going to see a movie in a theater.

It’s not a judge problem - it’s a legislature one. Why they couldn’t update the law or even inact a policy for tracking over the internet is the bigger issue vs how broadly you can get a judge to interpret a law.

But streaming live stuff (I presume these were sports games or shows) is closer to broadcasting or going to see a movie in a theater.

Sorry. I disagree.

The biggest difference between broadcasting/movies and streaming is the ability to track/gather information on the customer. Using that information for your own purposes in terms of targeting content at your existing users is a LOT different than selling that data to who-knows-who. As a customer, your transaction is with the business you are getting the entertainment from--Paramount in this case. You have no say or knowledge of YOUR INFORMATION being distributed to the internet at large, as long as they have the money.

And none of that money is going into the customer's pocket.

I understand it. Just saying, if the law didn’t say “tape” it would be much more open to interpretation by the court. But it was probably written on purpose - not because they knew streaming and webcasting would come but because they wanted to protect other forms of broadcast and cable (cable was just very young at the time, like Z Channel) and pay per view.

Is there a similar law to prevent libraries from releasing the books you check out? Does this law cover in-room video rentals? Asking for a friend :-)

Moreover, some justices suggested that companies could easily avoid suits in the future by obtaining their customers’ consent to share their personal information.

This is the fundamental problem in modern privacy conversations. Every single American is subject to an involuntary opt-in to sale of their personal marketing data on almost every web-based platform in existence, and this extends beyond web-based platforms to public consumption as well. If you go to WalMart, Target, Trader Joes, etc. you are being monitored by dozens of cameras, and your purchases are correlated to spending behaviors. This drives advertising decisions, and when you have a "loyalty card," they are specifically advertising to you. It's direct marketing, and you are the product.

Now, if you have a "loyalty card" that gives you discounts for purchases, arguably the company is paying you for the sale of your personal shopping habits, but where is that disclosed? No one reads the absurd fine print of the legal agreement, and I can tell you with 100% certainty it IS a legal agreement, so you're left signing away your rights to your personal information. Credit card companies are doing the same thing.

We should have a voluntary opt-in for every marketing platform. Marketing agencies will cry foul at this, but there are enough fools in this world that if they simply offered financial incentives for someone to opt-in, most people would take that opportunity. They don't care about their personal privacy.

I work in cybersecurity. I've seen the absolutely hordes of data these brokers have on us. Neatly correlated to every single behavior. Decisions made about what you'll purchase next. What's going on in your life based on the flavor of ice cream you buy. How many people are in your household. What car you drive. It's all there, and the market for your personal data is like an open air bazaar. This feeds not only into marketing agencies but also into the hands of threat actors who can very effectively socially engineer you into giving up bank accounts information digitally or over the phone by simply giving you indications that they know everything about you, because they do.

There are agencies out there whose sole focus is ripping down every piece of public information about you they can find barring public records that are legally published by your government, but even those can be sealed. It's not impossible to "go dark," but it's a tedious process that could take years; and even then, you get decent desaturation, you go to one new website to buy a widget, and that process starts all over again.

THAT is my problem with all of this. It's impossible to be anonymous.

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