The Supreme Court has agreed to weigh in on the interpretation of a decades-old federal privacy statute that has found renewed relevance in the modern digital advertising ecosystem. In Salazar v. Paramount Global, the Court will consider the scope of the Video Privacy Protection Act (VPPA), specifically, who qualifies as a “consumer” entitled to the statute’s protections. The decision to grant certiorari reflects a clear and growing circuit split with implications for companies that operate video-enabled websites, ad-supported streaming platforms, and content-driven digital services.
Congress enacted the VPPA in 1988 in response to a highly publicized privacy controversy during the confirmation hearings of Supreme Court nominee Judge Robert Bork. During those hearings, a Washington newspaper obtained and published Bork’s video rental history from a local video store. The incident sparked bipartisan concern over the ease with which sensitive viewing habits could be disclosed, prompting Congress to pass legislation restricting such practices.
Link to What the VPPA Regulates Today What the VPPA Regulates Today
The VPPA prohibits a “video tape service provider” (VTSP) from knowingly disclosing “personally identifiable information” (PII) concerning a “consumer.” The statute defines a consumer as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.”
At the time of enactment, the law was aimed squarely at brick-and-mortar video rental stores and physical videotapes. Today, however, class action plaintiff attorneys increasingly rely on the VPPA to challenge data-sharing practices involving streaming video, website tracking tools, and targeted advertising technologies.
The question of who qualifies as a “consumer” under the VPPA is no longer academic. In recent years, plaintiffs have brought a wave of class actions alleging that companies unlawfully disclosed video-viewing data to third parties such as Meta through tools like tracking pixels and software development kits (SDKs). These cases often turn on whether the plaintiff’s relationship with the defendant, frequently involving free accounts, newsletters, or non-video subscriptions, suffices to trigger the statute’s protections.
Link to Circuit Split Over VPPA Consumer Definition Circuit Split Over VPPA Consumer Definition
That question has now divided the federal courts of appeals. In Salazar, the Sixth Circuit reasoned that the statutory term “subscriber” must be read in context and in harmony with the surrounding language, that the phrase “goods or services” informs the meaning of “subscriber,” and thus the VPPA was intended to cover only audiovisual goods or services provided by an actual VTSP.
Under that reading, a company’s provision of non-video products or services, even if offered by an entity that also provides video content, does not bring every customer relationship within the statute’s scope. As the Sixth Circuit colorfully explained, if a VTSP were to sell “hammers,” a “Flintstones sweatshirt,” or a “Scooby Doo coffee mug,” purchasers of those items would not become VPPA consumers merely because the seller also distributes video content.
This interpretation placed the Sixth Circuit squarely at odds with earlier expansive interpretations from the Second and Seventh Circuits, which have held that the phrase “goods or services” encompasses all goods and services a provider offers, regardless of whether they are audiovisual in nature.
Link to Why the VPPA Case Matters for Advertisers Why the VPPA Case Matters for Advertisers
What was once a niche statute rooted in VHS-era concerns has become a powerful tool for plaintiffs targeting modern adtech practices. The question of who counts as a “consumer” may determine whether a VPPA claim survives a motion to dismiss, and, in many cases, whether a company faces substantial class action exposure.
Until now, the answer has depended largely on where the case is filed. Statutory damages under the VPPA are significant—$2,500 per violation—and the potential for class-wide liability is substantial. For this reason, the VPPA has remained a battleground where seemingly innocuous services such as a nostalgic television website or a sports recruiting newsletter can trigger high-stakes litigation over digital surveillance and data disclosure. The Supreme Court’s ultimate decision promises to bring long-awaited clarity.
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